jils (journal of indonesian legal studies) volume 4(2) 2019 339 available online at http://journal.unnes.ac.id/sju/index.php/jils book review internationalization of consumer law: a game changer, hans w. micklitz and mateja durovic, springer nature switzerland, 2017, 89 pages, isbn 978-3-319-45312-5 rizqi baktiara amrullah students at faculty of law universitas negeri semarang  rizqi27501@students.unnes.ac.id orcid id: https://orcid.org/0000-0002-6597-0310 how to cite: amrullah, r. b. (2019). internationalization of consumer law: a game changer, hans w. micklitz and mateja durovic, springer nature switzerland, 2017, 89 pages, isbn 978-3-319-453125. jils (journal of indonesian legal studies), 4(2), 339342. https://doi.org/10.15294/jils.v4i2.34770 copyright © 2019 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. overview the book is titled internationalization of consumer law: a game changer written by hans w. miclitz and mateja durovic published by springer in 2017. the book mainly talks about how consumer law has been applied in most countries with their own different standards. it also talks about the nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 4 issue 2, november 2019 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils 340 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils data of book author : hans w. micklitz and mateja durovic published year : 2017 title : internationalization of consumer law: a game changer language : english city published : gewerbestrasse. cham, switzerland publisher : springer nature isbn : 978-3-319-45312-5 page : 89 pages problems that arose from the laws that has been applied but it doesn’t provide solutions. the research conducted for this book only investigates how wide the application of consumer law is in the world. there are in total of 89 pages in this book divided into 6 chapters. nothing can be perfect and that means this book as well. the book’s content is overall easy to digest even though there are a lot of explanations. but of course, there are a few downsides of this book that i will explain in the following series of explanations below. subjects & topics the main thing that this book talks about is of course, consumer law. consumer protection law to be precise. the sets of rules that protects us from a provider’s mishaps, manipulation, and ensures our safety as a costumer. the consumer law also covers guidelines for marketing and advertising, private consumer law, transportation, services, or anything that has something to do with providing and receiving. each sub-topic’s explanation is explained really well and detailed with it also mentioning which rule/article/act in that region dedicated to the sub-topic. there’s one thing that’s lacking here and that’s the explanation on consumer protection law of digital goods. there has been many countries as of 2017, the publishing date of this book, which has applied consumer law in its constitution. i wonder why it’s not explained here. although there are a few mention of digital consumer law in it, this book doesn’t have a thorough explanation about it. this book also took a lot of example of how and where consumer law has been applied. the us, eu, china, south east asia, south america, and even caribbean nations. this is really important because this book talks about how international or universal nations has considered http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 341 available online at http://journal.unnes.ac.id/sju/index.php/jils consumer law. i like it, but there’s just not enough coverage about africa. why is it important to cover about africa you might ask? because this book talks about the international implementation of consumer law. and looking back to africa. that continent has been often neglected and researches towards that continent isn’t as plenty as other areas. this book only mentions a few about south africa, nigeria, and zambia but that’s it. no coverage of other african countries. it’s quite sad because there’s a lot of countries there, in the africa, that we don’t know the situation of its consumer law. the other downside of this book is that it talks about too much about the western (eu and us) consumer law. i do understand that one of them is the number one organization that really cares about consumers, the eu. just look how eu is the one that first made a move to solve the lootbox problem on video games. but this book’s goal is to bring you a view of how international consumer law is a game changer and how wide it has been applied. with it talking too much about western consumer law, the book’s goal hasn’t really been achieved. there’s this one chapter in this book that’s dedicated to international organizations, both global and regional organizations. it talks about how those organizations has implemented consumer law in its jurisdiction regions. each organization’s overview, brief history, and when does its implementation of consumer law is explained well. there’s a lot of coverage in here starting from the un itself down to gulf cooperation council with the exception of african union. now, for my favorite part of the book. my favorite part of the book is when it talks about the consumer problem and what consumer law protects us from. hidden fees, misleading advertisement, etc. because it actually got me thinking that these practices are still a common problem. for example when you dine in at a restaurant that’s quite pricey or fancy, usually there’s a service fee in the bill that you need to pay even though there’s no explanation whatsoever in the menu or anywhere in the restaurant. the consumer law does state that you can refuse to pay it but people just pay it anyway because getting into an argument at a dining place isn’t that proper is it? writing the explanations in this book is quite thorough and can be digested easily albeit there are a few part that’s quite hard to understand which is the sub-topic of private consumer law, the consumer contract part. i think this part of the book is going to be hard to understand by the common http://journal.unnes.ac.id/sju/index.php/jils 342 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils people because there are a lot of mechanics or procedures that can only be understood if you have studied or have done some things in private law sectors. i don’t know whether it’s because consumer contract subject itself is quite complex so the writers just can’t simplify it otherwise there are different meanings or private law as a whole is complex. nevertheless it’s just really hard to understand. when this book talks about the conclusion or the writer’s own thoughts and opinions, it uses a much more understandable writing style. but when it talks about the more scientific subject, the rules, history, mechanisms and such, it uses a more formal writing style. yes i do understand that a formal writing style is much more compatible when you’re talking about scientific stuff, but that doesn’t mean you need to write with a style to the point that you need to read it twice or more to understand. for example, there’s one paragraph in the consumer contract part where it talks about how a mixed-purpose transaction works and it gives an example for it with a lawyer buying a laptop for both personal and professional use. then after that, it gives an explanation whether the lawyer should be understood as a consumer. then does that mean there’s a chance that the lawyer cannot be understood as a consumer after buying the laptop? i don’t understand this part even after reading it again and again. sources & citations this book looks like it’s written with normative approach research rather than field based research looking at how much citations it takes. in one chapter alone, there are more than 100 citations in it and it’s the credible ones as well like an article from a convention. this is great because the more citations it takes means the less chance it is to contain misinformation. conclusion with most of content in this book being quite easily understandable with a few part of it being not so understandable, it delivers its message quite clearly and that is the consumer law has been implemented globally. that said, there’s not much coverage on african countries. but overall, it’s a good book to read when you want to know how wide is the implementation or application of consumer law is. that concludes my review for the book titled internationalization of consumer law: a game changer. hopefully you enjoyed reading it until the very end. any critiques or advices are welcomed. http://journal.unnes.ac.id/sju/index.php/jils 55 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 volume 2 issue 01 may 2017 jils 2 (1) 2017, pp. 55-78 issn 2548-1584 e-issn 2548-1592 implementation of the convention on international trade in endangered species of wild fauna and flora (cites) and law no. 5 of 1990 on the conservation of biological natural resources and its ecosystems in law enforcement efforts and guarantees of environmental rights in gunung leuser national park, indonesia muhammad ikhsan lubis 1 muhammad ikhsan lubis faculty of sharia and law, islam state university of north sumatera, indonesia  milubis16@gmail.com article info abstract submitted on june 2016 approved on december 2017 published on may 2017 indonesia is renowned for its abundant natural resources and vast biodiversity. however, indonesia also has wildlife species that are most vulnerable to the threat of extinction. illegal wildlife trade poses a serious threat to the preservation of wildlife in indonesia. wildlife illegally traded based on facts found in the field is mostly a catch from nature, not from captive breeding. gunung leuser national park (taman nasional gunung leuser, tngl) as one of the national parks in indonesia faces problems in the protection of these wildlife. this is triggered by the process of industrialization, illegal logging activities and crimes against protected wildlife. wildlife protection in indonesia and internationally is regulated legally through law no.5 of 1990 and internationally through the convention on international trade in endangered species of wild fauna and flora (cites). the role of local government, bksda tngl and related agencies in suppressing the extinction rate provides an understanding to the community of tngl conservation areas in particular to reduce conflicts and clearance of plantation land by utilizing the concept of environmentally sustainable development as well as providing the mitigation measures. keywords: law enforcement, crime, wildlife hunting, mount leuser national parks, tngl 1 special thanks for mr. ridwan arifin sh llm, editorial boar of journal of indonesian legal studies, universitas negeri semarang, also to department of law, faculty members, of islamic state university of north sumatera, indonesia. mailto:milubis16@gmail.com 56 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils 2 (1) may 2017, 55-78 http://journal.unnes.ac.id/sju/index.php/jils introduction indonesia is a land that has a lot of beauty. from sabang to merauke, every corner of the country has an invaluable beauty. one of the beauty of this country is leuser mount national park 2 or commonly called tngl (taman nasional gunung leuser). the largest park in indonesia is one of nature conservation areas that are very exotic with the diversity of living things in it. the park, which takes its name from leuser mount, holds two global statuses as biosphere reserve in 1981 and as a world heritage in 2004 endorsed by unesco. its beauty cannot be doubted. various types of ecosystems, flora and fauna have coloring the beauty of this park. tngl has native ecosystems from coast to high mountains covering tropical rain forests and managed with zoning systems utilized for science, education, aquaculture, tourism, and recreation purposes. leuser mount national park also has several animal rehabilitation centers, such as orang utan rehabilitation center at bahorok, endangered animal rehabilitation center at sikundur, and natural research center in katambe, southeast aceh. leuser mount national park is located in two provinces, namely aceh province and north sumatra province. formally, the existence of leuser mount national park was first mentioned in announcement of the minister of agriculture no. 811/kpts/um/ii/1980 on march 6, 1980 on the inauguration of five national parks in indonesia, leuser mount national park, ujung kulon national park, gede pangrango national park, baluran national park, and komodo national park. based on the announcement, then the area of tngl is 792,675 hectares. the announcement was followed up with the letter of the directorate general of forestry number: 719/dj/vii/1/80 dated 7 march 1980 addressed to sub kpa leuser mount. in the letter mentioned that the status of authority of tngl management is given to sub kpa leuser kpa. according to the minister of forestry regulation number: p.03/menhut-ii/2007, tngl is currently the technical implementing unit (upt, unit pelaksana teknis) of the directorate general of forest protection and nature conservation (dg phka) ministry of forestry, main office of leuser mount national park (bbtngl, balai besar taman nasional gunung leuser) led by the head of the center (echelon ii). as an effort to legalize the process of inaugurating the forest area, the decree of the minister of forestry no. 276/kpts-ii/1997 on the designation of 1,094,692 ha of forest located in the special province of aceh and north sumatra as tngl. in the decision, it was mentioned that tngl consists of a combination of: 2 hereinafter called as tngl 57 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 no area total area (hectare) 1 wildlife sanctuary of mount leuser 416.500 2 wildlife sanctuary of kluet 20.000 3 wildlife sanctuary west langkat 51.000 4 wildlife sanctuary south langkat 82.985 5 wildlife sanctuary sekundur 60.600 6 wildlife sanctuary kappi 142.800 7 recreation park of gurah 9.200 8 protected forest and limited production forest 292.707 source: decree of the minister of forestry no. 276/kpts-ii/1997 on the designation of 1,094,692 ha of forest located in the special province of aceh and north sumatra as tngl with a vast green area, tngl is one of the world’s lungs that have an important role in maintaining the stability of the life support system. tngl maintains water supply for the four million people living in aceh province and north sumatra province. almost nine districts rely on the benefits of tngl. among others the availability of water consumption, irrigation water, soil fertility guard system, floods control, and so on. in addition, there are five watersheds in aceh and three watersheds in north sumatra protected by tngl. five watersheds (das, daerah aliran sungai) in aceh province, namely jambo aye watershed, tamiang-langsa watershed, singkil watershed, sikulat-tripa basin, and new-kluet watershed, while those in north sumatera province are besitang watershed, das lepan, and wampu sei ular watershed. leuser mount national park also functions as the original habitat of sumatran wildlife such as sumatran tiger (panthera tigris), sumatran orangutan (pongo abelii), sumatran rhino (dicerorhinus sumatrensis), sumatran elephant (elephas maximus sumatranus), tapir (tapirus indicus), owa (hylobathes lar), and kedih (presbytis thomasii). not only that, leuser mount national park is the region with the largest list of bird species in the world with 380 species and home to 36 of the 50 species of birds sundaland. nearly 65% or 129 species of mammals from 205 species of large and small mammals in sumatra are listed in this place. leuser is the habitat of most fauna, ranging from mammals, birds, reptiles, amphibians, fish, and invertebrates. therefore, it is not excessive if we call tngl as a natural laboratory rich in biodiversity. with all the potential that we have, we should be proud and keep the divine grace deposited to us together. but as white, there must be black. it is 58 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils 2 (1) may 2017, 55-78 http://journal.unnes.ac.id/sju/index.php/jils impossible if there is no perverse parties who wants to exploit forest products excessively for personal gain by not taking into account the consequences to the wider community. it can be concluded from the rampant illegal logging cases in some locations that violate the environmental reservation limit, causing landslide and flash floods disaster, as has happened in recent years. flash floods and landslide disaster in bahorok, besitang, to southeast aceh has been devastating and material loss. forest encroachment can trigger local climate changes that increase drought in the dry season and increase rainfall in the rainy season. increased excess water discharge in barren soil becomes the main cause of flash floods and landslides. thus, the prevalence of illegal logging activities in langkat, southeast aceh and in many other locations in the leuser ecosystem area, may have created local climate change. if this linkage is proven by further research, then this can be summarized as the decisive cause of the disaster. not only that, excessive forest destruction will destroy the habitat of protected animals. the destruction will automatically reduce the number of protected animal populations. if this continues, it is not impossible that sumatran wildlife that we are proud of will be threatened extinction. however, based on the results of investigations and surveys conducted by walhi aceh with the foundation of rmtm and yelped aceh tenggara, the average owner of panglong business in southeast aceh is the officers of the state apparatus in this case among the officials, government officials and members as well as former members of the council. we should be wise and realize that we were created by god to be the caliph on this earth by keeping it, not destroying it. indeed many benefits that we will be able to keep the forest. a study conducted by beukering, et al. (2003) indicated that the total economic value of the leuser ecosystem, including tngl in it, is calculated at 4% for 30 years, usd 7.0 billion (when conserved), usd 9.5 billion (when conserved), and usd 9.1 billion (when used sustainably). this shows that leuser mount national park besides has a huge role and function in supporting the life support system and sustainable development, it also has great economic value if we can process it wisely. but in reality, we are less wise in responding to this grace. the true forest area is the original habitat of various kinds of endangered species, little by little has been destroyed. according to the problem described above there is no excuse for the government not to be serious in handling illegal logging that occurred in tngl. the government should be smarter in making policies based on longterm benefits, not for the benefit of investors who can act with borders with permits. 3 remember, once we destroy the existing, it is difficult for us to rebuild it. 3 retrieved from http://theglobejournal.com/opini/taman-nasional-gunung-leuser-rahmatyang-tak-tersyukuri/index.php http://theglobejournal.com/opini/taman-nasional-gunung-leuser-rahmat-yang-tak-tersyukuri/index.php http://theglobejournal.com/opini/taman-nasional-gunung-leuser-rahmat-yang-tak-tersyukuri/index.php 59 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 in accordance with the above description, the problems posed in this article is how the implementation of the application of the convention on international trade in endangered species of wild fauna and flora (cites) and the law no.5 / 1990 on conservation of natural resources and ecosystems in efforts of law enforcement against wildlife crime hunting protected in leuser mount national park? nature conservation area of mount leuser conservation area is a forest area with certain characteristics, which has the main function of preserving the diversity of plants and animals and their ecosystems. establishment of conservation areas is the implementation of ecosystem conservation strategies and in-situ conservation strategies that are directed as main functions of protection/asylum and nature conservation. the mandate on the conservation area of both nature conservation area (ksa) and nature conservation area (kpa) is described in law no. 5 of 1990 on the conservation of biological natural resources and its ecosystem, law no. 41 of 1999 on forestry, and government regulation no. 68 of 1998 on ksa and kpa. one example of a form of conservation area is a national park. national park (tn) is a natural conservation area, which has native ecosystem, managed by zonation system which is utilized for research, science, education, supporting cultivation, culture, tourism and recreation purposes. the conservation area nature is defined as a region with certain characteristics, both on land and in waters that have the function of protection of life buffer system, preservation of diversity of plants and wild animals (tsl), and sustainable utilization of biological natural resources and its ecosystem. as a nature conservation area, tngl serves primarily as a life support system with a management focus to maintain unique and highly biodiversity of leuser ecosystem representation as well as an important habitat for the existence of some flagship species. however, tngl is also a hotspot of high biodiversity degradation, caused by illegal logging, encroachment, fire, and other vandalism activities. the formal juridical existence of tngl for the first time set forth in announcement of minister of agriculture no. 811 / kpts / um / ii / 1980 dated march 6, 1980 on the inauguration of 5 (five) tns in indonesia, namely; mount leuser national park, ujung kulon national park, gede pangrango national park, baluran national park, and komodo national park. based on the announcement of the minister of agriculture, the designated area of tngl is 792,675 ha. the announcement of the minister of agriculture was followed up with a letter of the directorate general of forestry no. 719/dj /vii/1/80 dated march 7, 1980 addressed to sub-office of kpa leuser mount with important contents that is giving the authority 60 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils 2 (1) may 2017, 55-78 http://journal.unnes.ac.id/sju/index.php/jils status of tngl management to kpa sub-district of leuser mount. as the basis of legality in the process of inauguration of forest areas has been issued decree of the minister of forestry no. 276/kpts-ii/1997 on the designation of tngl covering 1,094,692 hectares located in the special province of aceh (now aceh province) and north sumatra province. according to law no. 25 of 2004 on national development planning system, government regulation no. 44 of 2004 and regulation of the minister of forestry no. 41 of 2008 on guidelines for the preparation of nature conservation area management and nature conservation areas, the management of the national park should be based on long-term, mediumterm, and short-term planning by accommodating the public's aspirations and involving stakeholders and experts to capture the opinions of various sectors and disciplines for material enrichment. tngl management be designed to provide ecological, economic, social, and cultural optimally and ensure the long-term legitimacy of its existence in the spirit of democratic change, transparent and accountable (accountable), as well as good governance (good governance). historically the birth of tngl originated in the 1920s or the dutch colonial government era, through a series of research and exploration process of a dutch geologist named fc van heurn in aceh. in its development there was a positive initiation supported by public figures to urge the dutch colonial government to give the status of the wildlife sanctuary and the protection status of the area that stretches from singkil (on the upper simpang kiri river) in the south, along bukit barisan, the tripa river valley and the meulaboh beach swamp, in the north. the chronological history of the birth of tngl and its management unit is presented in the table below. chronological history of the birth of mount leuser national park (tngl) date/year decision voice of decision 1927 local aceh leaders asked the dutch east indies government to protect the alas valley area from logging. august 1928 the first proposal was put forward by dr.van heurn to the dutch government to protect the singkil region (upstream of simpang kiri river) south, along bukit barisan, towards the tripa river valley and meulaboh rawa beach, in the north. february 6, 1934 tapaktuan declaration the determination of local community representatives to preserve the leuser area forever as well as to set up penal sanctions (prisons and fines). the declaration was signed by the dutch east indies governor. july 3, 1934 zelfbestuurs belsuit (zb) no. 317/35 the establishment of leuser mount nature reserve area of 142,800 ha. august 8, 1935 zb no.138 formation of forest group langkat sekundur. the boundary was done on august 12, 1936. october 26, 1936 zb no. 122 / agr establishment of kluet wildlife reserve area of 20,000 ha. october 30, sultan langkat's determination of forest group langkat sekundur, 61 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 1938 decision langkat selatan, and langkat barat as sekundur wildlife reserve with the name wilhelmina katen, with total area of 213,985 ha. december 10, 1976 minister of agriculture decree no. 69 / kpts / um / 12/1976 the appointment of sm kappi is 150,000 ha. march 6, 1980 minister of agriculture decree no. 811 / kpts / um / ii / 1980 tn declaration. gunung leuser covering an area of 792,675 ha. march 7, 1980 sk dirjen kehutanan no.719 / dj / vii / 1/1980 sub leaves protection and nature conservation (ppa) of gunung leuser is authorized to manage tngl. 1981 tngl is designated as a biosphere reserve by unesco on the government of indonesia's proposal. march 3, 1982 minister of agriculture decree no. 166 / kpts / um / 3/1982 appointment of forest lawe gurah tourism, which comes from part of sm kappi (7,200 ha), and serbolangit protected forest (2,000 ha). 1982 minister of agriculture decree no. 923 / kpts / um / 12/1982 tngl in north sumatra area of 213,985 ha, a combination of sm langkat selatan, sm langkat barat, sm & tw sekundur. 1982 minister of agriculture decree no. 924 / kpts / um / 12/1982 tngl in di aceh area of 586,500 ha, a combination of sm kluet, sm gunungleuser, sm kappi, and tw lawe gurah. may 12, 1984 sk minister of forestry no.096 / kpts-ii / 1984 establishment of technical implementation unit of tngl hall under the directorate general of phpa. december 11, 1984 sk dirjen phpa no. 46 / kpts / visek / 84 the designation of the tngl working area, including bc mt. leuser, west langkat, south langkat, sm sekundur, sm kappi, sm kluet, tw lawe gurah, tw sekundur, serbolangit protected forest and limited production forest sembabala. 1984 defined as asean park heritage. 1997 sk minister of forestry no.276 / kpts-ii / 1997 the designation of tngl is 1,094,692 ha. june 10, 2002 sk minister of forestry no.6186 / kpts-ii / 2002 organization and administration of national parks, as has been replaced by minister of forestry regulation no. 03 year 2007. july 2004 decisions of the world heritage committee determination tngl, tnks, and tnbbs as group tropical rainforest heritage of sumatra. february 1, 2007 permenhut no. p.03 / menhutii / 2007 organization and administration of the national park technical implementation unit. 62 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils 2 (1) may 2017, 55-78 http://journal.unnes.ac.id/sju/index.php/jils the illegal trade of flora and fauna (other than fish and wood) is estimated by various sources valued at us$ 7-23 billion per year 4 and us$ 2.5 billion in east asia and the pacific alone 5 , and has led to the decline and local extinction of many species in southeast asia, including species within the protected area. this trade includes many species including insects, reptiles, amphibians, fish and mammals. this trade also includes both dead and living species and their derivatives, used for medicines, food, pets, and ornaments or traditional medicine. all of this has great value not only in the black market, but also on the national economy if it is managed on an ongoing basis. most of these trades are highly organized and benefit a group of criminal offenders, while costing developing countries billions of dollars in lost income and development opportunities. indonesia is one of the top ten ―mega-diversities‖ countries and the largest supplier of wildlife products in asia, both legally and illegally. despite occupying only 1.3% of the earth's surface, indonesia has 12% of the world's mammals, 7.3% of the world's amphibians and reptiles, and 17% of the world's birds. of this total, 1,225 species of fauna and flora threatened with extinction on a global scale 4 , fourth-highest compared to other countries, including mammals (185 species, more than any other country in the world), birds (131 species, the second largest in the world), amphibians and reptiles (64 species), fish (149 species), mollusks and other invertebrates (288 species), and plants (408 species). in indonesia, one of the biggest causes of declining species, especially about one-third of bird and mammal species and all reptile species are over-exploitation. in this archipelago, important species include tigers, rhinoceros, elephants, orangutans, birds, bears, orchids, marine and freshwater fish, turtles, fragrant wood (oak), pangolins, corals, snakes, bats, sharks and rodents hunted and traded in large quantities. wildlife trade is the greatest threat (along with habitat loss) for the sumatran rhino (nearly extinct, population 100-120), sumatran tiger (nearly extinct: 650), asian elephant (endangered) and sundanese pangolin (endangered). due to its geographical and status as a major trading country, indonesia is also a great source, destination, and transit point for smuggling and concealment of wildlife, such as african elephant ivory. the consequences of unsustainable trade are major threats to wildlife that have significant global value. the value of illegal trade in indonesia alone is estimated at us$ 1 billion per year. if unsustainable legal trade is also 4 nellemann, c., henriksen, r., raxter, p., ash, n., mrema, e. (eds). 2014. the environmental crime crisis – threats to sustainable development from illegal exploitation and trade in wildlife and forest resources. a unep rapid response assessment. united nations environment programme and grid-arendal, nairobi and arendal, www.grida.no. 5 unodc. 2013. transnational organized crime in east asia and the pacific. a threat assessment. united nations office on drugs and crime. https://translate.googleusercontent.com/translate_f#footnote4 63 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 calculated, this value jumps very high, which means significant economic, environmental, and social losses. the evidence also points to the decline of previously non-threatened and legally traded species in indonesia's domestic market, such as the murai batu and cucak rawa birds, whose species has now declined to extinction in a national park declared stable. the trade not only directly impacts the species; removal of ecologically important components can undermine the overall integrity of the ecosystem. this is exacerbated when a species removed from its habitat plays an important role in the ecosystem, such as elephants and tigers. in indonesia, hunting is done by local communities and hunter groups, some groups immigrated to indonesia as some high-value species have become extinct in other countries (e.g, tigers and rhinos extinct in cambodia, laos and vietnam). tigers are also then trafficked when caught in conflict with humans. local communities benefit very little from wildlife trade, as large profits are gained by traders. local people bear all the consequences, including the loss of wildlife, tourism revenue potential and social and ecological disruption caused by hunter groups. trading rhinoceros horn (1 kg worth thousands us dollar) and pangolin most of the international scale, to east asia (vietnam and china).trade of tigers and ivory (asia and africa) of domestic and inter-state scale; tiger and ivory skin is considered very valuable by the elite in indonesia. indonesia also has many groups of animal lovers, run by individuals who maintain species, including protected species such as lemurs or some bird species. these groups often trade or exchange animals online or during closed meetings. the law enforcement of crimes against wildlife in indonesia is still very weak. the ministry of environment and forestry statistics shows that cases of wildlife crimes averaged 100 cases per year between 2005 and 2009, which then dropped to 37 cases in 2010 and 2012, and only 5 in 2013. this misleading, with estimates of wildlife smuggling is estimated to increase (samedi, 2015, pers comm). the eradication of wildlife trade in indonesia is hampered by limited political will and collaboration between law enforcement agencies and improper implementation of law enforcement procedures. there are also legal loopholes and inconsistencies that hinder the success of a demands process. for example, in the indonesian territory, trading and selling of african elephant’s ivory and tigers are not native to indonesia and rhino body parts are allowed. legal reforms, strengthening government law enforcement agencies, improving intergovernmental collaboration, and building legal and regulatory awareness are critical to addressing the existing issues. the purpose of this paper is to conduct desk review to analyze the policy, legal and regulatory frameworks that exist today and are related to wildlife crime and illegal trade in wildlife. this report includes an analysis of the legal umbrella and its implementing regulations, the implementation of the convention on international trade in endangered species of wild fauna 64 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils 2 (1) may 2017, 55-78 http://journal.unnes.ac.id/sju/index.php/jils and flora (cites), the gaps or inconsistencies of regulations and their implementation and the gaps in their law enforcement. the report concludes with recommendations on opportunities for policy reform and regulation in indonesia to effectively combat illegal wildlife trade. habitat destruction the existence of humans sometimes becomes a disaster for the balance of living things somewhere. humans sometimes do something to get something worth killing without thinking about the regeneration of animals or plants. elephants, for example, are killed by hunters only for tusks, tigers for their skins, monkeys for pets, and so on. changes in forest areas into settlements, agriculture and plantations have also been one of the causes of the acceleration of species extinction. perhaps in ancient jakarta there were many local species, but over time the change of many species was lost or moved to other areas more secure. many animals take a long time to get into the breeding stage, usually have one child birth, take a long time to take care of the child difficult to mate the child is difficult to survive to adulthood, and so on. this makes it difficult for species that have a low regenerative power to multiply themselves significantly. in contrast to mice, chickens, flies, and rabbits are easy to regenerate. competition among predators like leopards with tigers can make weak competitors will be pushed into other areas or even can die of mass starvation that caused extinction. that’s why let's keep the endangered animals left in order not to become extinct in time so our children and grandchildren can see the animals and plants directly. an animal should be properly maintained so as not to become extinct from the earth. animals are also one of the families in our lives. keeping the animals and preserving them is a good action to save the animals. it can also do a good strategy to be able to open the eyes of government and society to remain concerned about our animals. excessive exploitation one of the main causes of the decline of species in indonesia is excessive exploitation. although estimates vary, the illegal trade in indonesian flora and fauna is estimated to be tens of millions of dollars per year, reflecting the substantial losses to the indonesian economy, and losses that destroy indonesia's cultural and environmental heritage. despite comprehensive legal and regulatory frameworks designed to prevent harm, wild hunters, traders, shippers and buyers can still avoid legal proceedings in the form of arrests, investigations and demands by utilizing capacity constraints from forest police, police and the judicial system in enforcing applicable regulations, and by utilizing a number of remaining legal gaps. this 65 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 paper was prepared for the purpose of analyzing the policy and regulatory frameworks and other rules relating to crimes against wildlife and wildlife trade in indonesia, covering the national framework related to the implementation of cites, gap details and inconsistencies of regulations and practices, between law enforcement and court decisions, and policy and regulatory reform opportunities in indonesia to effectively combat wildlife trade. the recommendations of this assessment can be divided into two important parts: (1) improvements to the existing legal and / or policy framework and planning that refer to it, which may include the development of new laws, policies or plans; and (2) corrections or amendments to the manner in which the legal framework is implemented. several important opportunities for the amendment of various laws have been identified, in particular in relation to law no.5/1990, on the conservation of biological resources and ecosystems, which include: i. revise the species protection regulations that are tailored to the cites list; ensuring that non-indonesian species but included on the cites list (e.g african elephants) are protected equally by indigenous species of indonesia; updating the list of protected species and the consideration of grouping species into three protection states: (1) protected species, including endangered and endangered species and all species in appendix i of cites; (2) strictly controlled species, including species susceptible to trafficking and species in appendix ii of cites; and (3) species whose trade should be monitored; ii. link animal protection and habitat protection to ensure that forest degradation is halted, possibly through the establishment of "critical minimum habitat limits" for endangered species. the preservation of these habitats should be linked to ongoing efforts to improve spatial planning, and there may be changes in provincial governance policies; iii. higher penalties and minimum and maximum penalties, including criminal sanctions such as imprisonment, fines, revocation of certain civil rights, and confiscation and seizure; and iv. improving forest police and investigators the authority civil servants improve training and ensure that there are new rules and regulations in connection with online trading and the use of electronic evidence. in addition, indonesia has some biodiversity policies, derivative regulation and action plans aimed at facilitating the implementation of the various action plans that have been developed diversity and special species management 66 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils 2 (1) may 2017, 55-78 http://journal.unnes.ac.id/sju/index.php/jils plan. these things often overlap, do not have a clear management authority, or lack of resources. the action plan for a particular species, for example, are often underused, and should be included deeper into the actions and activities of government, while ensuring that the actions and the activities have sufficient resources and in line with government priorities and the lack of support for the implementation of law enforcement through effective legal framework. examples are precautions that can be used to limit or stop the illegal wildlife trade, still less in focus. effective prevention efforts that do not require the use of repressive efforts, so the impact on lower costs, and should be given more priority in law enforcement efforts. recommendations are given including: 1. increased priority in the field of prevention efforts to reduce the incidence of conflict with wildlife, and to limit poaching and forest encroachment; 2. building the capacity of civil servant investigators, improve their coordination, and expand the powers of the forest police to investigate and detain suspects wildlife crime; 3. application of a ―multi-door” in the prosecution, so apply some charges against several defendants, tracing the illegal activities of the suspect to the main offenders, and use of alternative law where a sentence of longer and larger fines to increase the deterrent effect; and 4. improved data and information exchange and international cooperation to help stop crimes against wildlife. data and information plays an important role in the success of law enforcement. data exchange protocols need to be developed at national and international levels and international collaboration should be improved to facilitate the investigation and extradition of suspects. in short, there are a number of important opportunities exist to reduce wildlife crime and illegal trade in wildlife in indonesia. although legal reforms are needed to provide a solid base for the efforts of law enforcement and ensure the legal framework in indonesia is able to cope with the growing forms of crime and increasingly sophisticated, but much can be done to improve enforcement and increase the success rate demands. the huge success that occurred recently, such as the seizure of more than 7,000 turtle pig snout indonesian ports to be shipped to china 6 , largely a result of the improvement of relations and cooperation between customs, police and special investigators. that success is an indication of the rapid effects of improvements in law enforcement efforts. along with the legal reforms described in this report, the success of such issuer will enable indonesia to make a powerful breakthrough in reducing crimes against wildlife and wildlife trade in the future. 6 retrieved from http://www.traffic.org/home/2015/1/23/more-than-2300-turtles-seizedat-jakarta-international-airpo.html http://www.traffic.org/home/2015/1/23/more-than-2300-turtles-seized-at-jakarta-international-airpo.html http://www.traffic.org/home/2015/1/23/more-than-2300-turtles-seized-at-jakarta-international-airpo.html 67 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 high market demand against illegal wildlife protected one of the functions of the forest is home to a wide variety of wildlife as a part of biological resources. 7 forest ecosystem is an integrated system in the form of landscape with natural resources dominated by trees in their natural environment one cannot be separated from each other. in the development, forest no longer able to protect the existence of the species due to environmental destruction. environmental damage can occur due to natural and human actions. 8 under the provisions of article 1 (16) of law no. 32 of 2009 on the protection and management of the environment, ―environmental damage is an act of people who pose a direct or indirect alteration of the physical properties, chemical and or biological environment that exceeds the criteria of environmental damage‖. environmental destruction by humans to animals by damaging the natural habitat, poaching or illegal capture and trade increasingly marginalize the existence of endangered species of animals are no exception. various rare species endemic in indonesia such as the sumatran tiger, rhinoceros, javan eagles, dragons, birds of paradise and other animals that live on land, in water and in the air that its existence is endangered. it is of course contrary to the provisions of law no. 5 of 1990 on conservation of natural resources and ecosystems in particular in chapter v on preservation of fauna and flora, which article 21 paragraph (2) letter (a) and (b) ―states that every person is prohibited to catch, injure, kill, keep, own, maintain, transport, and traded protected animals alive‖ and ―hold, own, maintain, transport, and traded protected animals in a state of death‖. the rise of the trade is illegal to animals caused by the high market demand for the availability of animals such as the material products that use animal skins or fur of animals, as well as pets and others, because of endangered species have the potential economic and commercial value high. each year the presence of decreased the number of the population (those animals) and are difficult to find in their natural habitat. if this condition is allowed to continue the scarcity and the extinction of endangered species are protected, unavoidable so that the diversity of wildlife in indonesia will become a story for our grandchildren and disrupt natural ecosystems that will have a negative impact to human life. 7 takdir rahmadi, 2011, hukum lingkungan di indonesia, pt. raja grafindo persada, jakarta, h.166 8 muhamad erwin, 2008, hukum lingkungan dalam sistem kebijaksanaan pembangunan lingkungan hidup, refika aditama, bandung, h. 48. 68 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils 2 (1) may 2017, 55-78 http://journal.unnes.ac.id/sju/index.php/jils decree of the president of the republic of indonesia number 43 of 1978 about the convention on international trade in endangered species of wild faunda and flora convention on international trade in flora and fauna endangered species (cites) is divided into three (3) categories, namely appendices appendix i, appendix ii and appendix iii. items included in appendix i is the kind whose numbers in the wild have been very few and feared to be extinct. a type that is not currently included in the endangered category yet have the possibility of extinction if trade is not stipulated included in the appendix ii. in annex iii, appendix iii has the basic criteria are not much different from appendix ii. the difference is the type that is included in appendix iii special imposed by a particular country. it is important that appendix i and appendix ii, these provisions apply to all range country, i.e. countries where a species can be found in the appendix. if there is a difference in opinion between the ranges of the country so that not all of them agree to enter into a kind of appendix, the types included can be analyzed on appendix iii and applies only to countries that want to incorporate that type in the appendix. the international convention on trade fauna and flora endangered species (cites) convention on international trade in flora and fauna endangered species (cites) is a multilateral treaty that provides an international mechanism to regulate wildlife trade. there are now 180 countries that participated in cites. although cites is legally binding for countries that participate in this convention. state should implement the cites convention, it does not take the place of national laws. the convention requires countries participating to implement cites domestic legislation to ensure that cites is implemented at national level. indonesia participated in cites in 1978, and began enacting law no. 5/1990 and derivatives regulations in connection with this act as the main national regulations for the implementation of cites. each party to this convention shall delegate one or more than one management entity responsible for implementing the licensing system and one scientific body to provide advice on the impact of trade on the status of the species. ministry of environment and forests (klhk) is the cites management agency, and the indonesian institute of sciences (lipi, lembaga ilmu pengetahuan indonesia) is the cites scientific board. cites regulate and supervise trading by using the "negative list" as trade all species are allowed and are not regulated unless these species appear in the annex. protected species listed on one of three attachments: 69 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 appendix i, is about 1,200 species, and the species that are endangered or could be endangered because they are traded. commercial trading wildcaught species of the species on this list is illegal (only be allowed in special circumstances for a non-commercial purpose). trade breeding animals or plants are bred artificially in the list appendix i is considered species included in appendix ii, with their requirements (see below). trade of these species requires export and import permits, issued by the management body in each country. management agency of exporting countries is expected to check that an import permit has been there and the importing country is expected to maintain the species well. in addition to, scientific bodies exporting countries must make a finding that there is no loss, which ensures that the export of the species will not be a negative impact on wildlife populations. appendix ii, approximately 21,000 species, are species that are not endangered, but may be threatened with extinction if trade in such species is not regulated to avoid the use of which is contrary to the survival of the species in the wild. in addition, appendix ii can include species that are physically similar to species already listed in this annex. international trade appendix ii species can be approved by delivering an export permit or reexport certificate by the management body of the exporting countries. no import license is required although several parties required this as a form of domestic regulations more stringent. before the export licenses granted, export companies should ensure that exports will not adversely affect the population of the species in the wild. appendix iii, 170 species, are species listed after one country asks for help in controlling the trade of cites species. endangered species are not always global. in all member states, the trade of this species is only allowed with the permission of export and certificates of origin from member countries who have registered species. law on cites in indonesia although indonesia is agree to cites in 1978, but national implementation legislation was only implemented in 1990. law no.5/1990, regarding the conservation of natural resources and ecosystems, is the primary legislation in the implementation of cites. however, it took until 1999 to issue regulations derivatives required. regulation of derivatives encompasses government regulation no. 7/1999, regarding the preservation of flora and fauna, and government regulation no. 8/1999, concerning to the utilization of wild plants and animals. further regulation of derivatives included ministerial decree no.447/2003, the administrative manager harvest or capture and distribution types of wild plants and animals, and the minister of forestry no.p.19/2005 concerning management of breeding plants and wildlife. 70 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils 2 (1) may 2017, 55-78 http://journal.unnes.ac.id/sju/index.php/jils in law no.5 / 1990, breach of the provisions of protected species can be punished with a maximum prison term of five years and / or fined up to 100 million rupees. law no.5/1990 provides the skeleton, and derivatives regulation, and have been analyzed by cites to conform to the national implementation of the convention. however, there is a gap large enough in this legislation with respect to species that are not from indonesia, and the difficulty amend the list of protected species to reflect the latest additions in the appendix of cites. the act also does not provide rules for species that are not protected. although the government regulation no.7/1999 and government regulation no. 8/1999 provides legal protection for species that are not protected using other laws, such as the general criminal law, customs and excise and quarantine act, the implementation of these regulations so far ineffective. the regulations establish a licensing system for species listed in cites, which include crop management, quota setting the arrest, the transport control and management system controls arrest. there are guidelines to make findings that are not detrimental to cites to implement article iii, iv and v of this convention. quota arrests, which began in early 1990 was originally a ―guideline harvest‖. in the first five years, the export quota is frequently exceeded. but now, the existing protocol to set an annual quota for the species listed in appendix ii are harvested and exported are also in accordance with which to establish an annual quota for the management of wild animal species trafficking are not listed on cites and is estimated to have improved. in the face of the absence of wildlife population data on a national scale, the quota system was developed as a response to ―adaptive management‖ which was originally a harvest control mechanism. the quota system in indonesia is set to broad principles in which the level of better prevention zero quota to encourage smuggling and illegal trade to supply demand. some workshop in indonesia focused on the methodology of finding that there was no loss in 2002, the indonesian cites scientific agency now using iucn guidelines (rosser and haywood, 2002) to assist in finding that there was no loss to the export of appendix-ii. quotas are set based on analysis of the findings of no harm is as follows: each year in july-august, bksda in each province to provide information or data harvesting areas, the total harvest in previous years, and on crop yields in the coming year to the scientific board. if there is, bksda also provide qualitative data on the results of the survey the number of population in the wild; every year in september, the agency cites scientific hold a seminar (consultation) with all stakeholders, which include government agencies (research, management, commerce, industry), universities, ngos (local, national, international), and trade associations; 71 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 additional information is then included in the process of consideration of the seminar, mainly from individuals / organizations in the field of research, and helps make the proper adjustments to the amount of the proposed quotas; agency cites scientific can then consult further with other organizations for information related to, and is still open for further submission of the request; from the above process, lipi as scientific board then make recommendations to the management board, which officially declared the number of annual quota through a decision of the director general of forest protection and nature conservation. in the final decision, to accommodate domestic trade, the export quota is allocated 90% of the harvest quota. this decision to inform the number of annual allowable harvest of each species at national level, which is allocated to the various provinces. ideally, the quota for each province shall be determined in accordance with the "production system" potential in every province, but it is a process that is still running and requires further review, in particular the role of plantation and breeding system in supplying trade. harvest quotas for each species based on estimates of the data, including: information on the biology and distribution of the species, general land use and potential threats in specific areas. at this level, the director general may still receive additional information that could lead to reduced quota (usually less than recommended by the scientific board) before signing the annual list. ministerial decree no. 447/2003 establishes inspection procedures and controls carried out by the competent bodies at all levels (bksda and phka central office) in terms of harvesting, brokers, traders, people who do the removal and exporters and importers, and must comply with the quota allocated. production-based catches of species get referrals and regulated by the ministerial decree no. 19/2005. the decree provides guidelines and arrangements regarding catch captivity in accordance with article vii of cites and the conference resolutions 10:16. although the regulatory framework is very good, there are some significant problems with the legislation the most important is the list of protected species which will be used annex government regulation no. 7/1999. government regulation no.7/1999: protected species list the essence of this regulatory framework is government regulation (pp) no. 7/1999, which provides a list of protected species in indonesia. 72 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils 2 (1) may 2017, 55-78 http://journal.unnes.ac.id/sju/index.php/jils cites implementation in indonesia cites implementation, including enforcement of all relevant legislation, requires cooperation and coordination between relevant agencies and the ministry at the national level. it also requires close cooperation through bilateral, regional and international, including international organizations and non-governmental organizations. at the national level, the cites management agency, klhk, must coordinate the implementation and enforcement of cites with a number of agencies, including customs, quarantine, police and other relevant agencies. some of the training modules, guidelines concerning the identification of species and cites has been produced. training and capacity building for law enforcement of all relevant institutions have been carried out by the cites management agency and bilateral collaboration and non-governmental organizations used to track the illegal trade in wildlife, conduct a review of population and other matters related to cites. cooperation with icpo-interpol can also help law enforcement at the international level and increase network capacity cites and law enforcement agencies in indonesia. at the regional and international level, indonesia is leading the implementation of the asean—wildlife enforcement network (asean-wen). this network can be used for a variety of information and intelligence related to cites cooperation with asean member countries. other than that, the indonesian government has also developed bilateral cooperation with some countries such as vietnam, which is often the main purpose of illegal wildlife products from indonesia. in a bilateral mou with the united states, indonesia also prioritizes action to eradicate the illegal trade in wildlife. and indonesia is also a signatory to the london declaration on illegal wildlife trade in february 2014. the criminal justice system in indonesia in the context of protection of biodeiversities the standard procedure for the handling of criminal cases at the level of the implementing agency enacted by law no.8/1981 of law criminal law (penal code). criminal law is generally applied to all types of crime unless specifically mentioned in other laws, and if this happens then the priority is given to other laws in accordance with the principle of lex specialis derogate lege generali (e.g, the law of conservation (special crimes) takes precedence over the criminal code (general crime). therefore, in practice, the judiciary crimes against wildlife or conservation violations should use compared forestry conservation act or the criminal law, even though some of the crimes 73 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 specified in the criminal law can also be used as a secondary or tertiary claims to support the main demands. similarly, all the procedures for investigation and criminal prosecution should use the code of criminal procedure unless otherwise stated in the other special laws. handling legal issues in forest conservation and biodiversity is not only related to criminal law, but also included in administrative law and civil law. examples of civil lawsuits, including when the government demanded by the public due to a conflict of land ownership, or government sued the company for inappropriate behavior. as a practical example, the government never prosecuted using administrative law because it gives the nature reserve plantation in rawa singkil aceh, the orangutan habitat. criminal investigation against wildlife protected criminal procedure code states that criminal investigations should be carried out by police investigators or civil (civil servant investigators investigators) who has been given the authority by law to conduct criminal investigations and filed a criminal case compatible with the applicable law. klhk have some staff that had been trained as a civil servant investigator (investigators) to investigate a special case under the authority of the ministry of them. most of the forest police and investigators klhk placed in a national park or provincial natural resource conservancy agency (bksda, badan konservasi sumber daya alam). only some of them are assigned to local offices to help if needed, or when there is a crime that occurred in some provinces. there is a possibility that this arrangement can become more clear when the new klhk structure together with other ministries (formerly the ministry of environment and the ministry of forestry). unlike the police investigators, investigators from klhk only able to investigate specific crimes cases in accordance with the laws governing their jurisdiction, in this case the forestry and wildlife crime, and investigators of the commission can only investigate crimes fisheries. in addition, civilian investigators who have a national license can conduct investigations throughout indonesia. if not, they can only conduct an investigation based on a specific work area. 9 investigators who have been trained not automatically have the authority to investigate criminal offenses. they must have the decree of the ministry of justice as a ―permit‖ to conduct an investigation. even many investigators who are trained do not have ―permission‖, or they have licenses that have expired or they are operating outside their jurisdiction. as a result, and because the police were given the authority to investigate all types of crimes, most cases are handled by police investigators. customs and 9 the civil servants/the state official in maritime area has an authority to process the investigation based on the provision of law no. 27 of 2007. 74 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils 2 (1) may 2017, 55-78 http://journal.unnes.ac.id/sju/index.php/jils quarantine officers can also support wildlife crime investigations to monitor the potential for export/import/transport of wildlife from one place in indonesia to other countries. going forward, the crime investigator recommended for all wildlife should be done by civilian investigators because they have the technical knowledge that is more specific than the national police, especially when conducting the search, evidence gathering, or make the case for crimes related to conservation. the public investigators only require regular training in conducting the search, investigation techniques and management of evidence. obstacles and action completion of implementation of law no. 5 of 1990 limited human resources leading to difficulties in the management of protected areas tngl, so will cause duties and functions do not work well. it has an impact on the slow handling crime endangered species in nature tngl. procurement of more intensive working meetings in each sector of the region as one of the efforts made to cover the completion of the task is not small. in some areas of employee functions bksda tngl maximized as structural employees also serves as a functional employee. ideally with a limited number of personnel it each position must be assumed everyone, so there is no order positions which resulted in the duties and functions run less than the maximum, it would require additional staff. limited system of coordination and cooperation between sectors can lead efforts to protect endangered species be comprehensive so that it will hamper conservation efforts itself. as for the work done bksda tngl is with continuous coordination and cooperation with various parties such as the police and related agencies. mobilization efforts among personnel also more frequently improved between agencies or publics. the utilization regulation of wildlife that are not clear enough cause difficulty in performing their duties and functions according to the rights corridor. in this regard the effort made is that each personnel perform interpretation of the rules according to their respective capabilities while maintaining the existing rules. less of experts in the field will certainly hinder the implementation of tasks assigned by an agency. work done tngl related bksda the above is to conduct training for employees bksda conservation tngl also students, especially students of nature lovers through conservation programs and community cadres, especially those in the surrounding area. this training aims to introduce forest including the plants and wildlife that are expected to enhance the ability of the human resources personnel tngl bksda in protecting and safeguarding the forest ecosystem and disseminate to the public. lack of public awareness in the efforts of protection directly from bksda tngl in the case of community is not involved should be aware. in anticipation of this bksda tngl make approaches to the public as a first 75 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 step to encourage and promote the importance of conservation of endangered species, it is as a preventative measure. massive exploitation of natural resources, especially endangered species was become the serious problem. in this case, try to reduce reliance bksda tngl society by providing education and skills training in agriculture or development of the tourism sector so as to create economic alternatives for the community effort. human hunting of wildlife in essence, among others, aim to meet the needs of everyday life, but with the passing of time and the times nor the culture, the hunting of wild animals now also be done as a hobby or pleasure, exclusivist (preserve wildlife, as a symbol of status) and for products traded in the form of wildlife, for example ivory. an incorrect understanding of the culture in which people preserve the bird is considered to have a higher social status. this is certainly contrary to the conservation of endangered species because people who raise the birds many of which are not concerned with the status of appendix to these animals. anticipating this from the first bksda tngl further improve supervision of the activities of buying and selling of endangered species, also with the help of the community in the form of reports report the presence of endangered species in the communities will be followed up. in collaboration with community agencies that seeks to form wisdom of community workshops to build deep thinking about conservation. arrests are not environmentally friendly to wildlife damage existing ecosystems so that conservation efforts will be hampered. this is certainly an obstacle for the implementation of tasks bksda tngl efforts undertaken by means of preventive is to do outreach to the community around conservation areas. how repressive to conduct joint operations, collecting materials and information, as well as rare plants and animals the operation carried out with the next stage of berua evacuation and quarantine. by the cooperation between public and bksda tngl also given warning letters and enforcement firm to the people who commit offenses. conclusion there are a number of important opportunities exist to reduce wildlife crime and illegal trade in wildlife in indonesia, particularly in leuser mount national park. although law reform is needed to provide a solid base in the future for the implementation effort and to ensure that the legal framework indonesia is still able to solve crimes rapidly evolving and increasingly sophisticated, many also can be done to improve the implementation and improve the success rate the demands of this type of crime. the success of large-scale recently, largely the result of improved relations and cooperation between bksda tngl, police and related agencies. success like that is indicative of a rapid impact in the improvement of the implementation effort 76 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils 2 (1) may 2017, 55-78 http://journal.unnes.ac.id/sju/index.php/jils and, combined with targeted legal reforms, will enable indonesia to make strong inroads in reducing crimes against wildlife in the future. bibiliography a.a. istri agung kemala dewi, made gde subha karma resen. upaya pemerintah melestarikan keberadaan satwa langka yang dilindungi dari kepunahan di indonesia. department of constitutional law, faculty of law, universitas udayana, bali. andry suryadi, perlindungan satwa langka yang dilindungi di indonesia berdasarkan undang-undang nomor 5 tahun 1994 tentang pengesahan konvensi pbb mengenai keanekaragaman hayati (studi kasus pemerintah daerah riau). arief budiman, 2014. ―pelaksanaan perlindungan satwa langka berdasarkan undang-undang nomor 5 tahun 1990 tentang konservasi sumber daya alam hayati dan ekosistemnya (studi di seksi konservasi wilayah i surakarta balai konservasi sumber daya alam jawa tengah).‖ gema, xxvi/48/february-july, faculty of law, universitas sebelas maret, surakarta. ismail, s.hut., laporan akhir program pride campaign tahun 2008-2010 taman nasional gunung leuser wilayah besitang, sumatera utara, indonesia, yayasan orangutan sumatera lestari, orangutan information centre (yosl-oic). iucn (2014). the iucn red list of threatened species version 2014.3. tabel 5 – jumlah spesies yang terancam (hampir punah, terancam punah dan rentan) di dalam setiap kelompok organisme berdasarkan negara. http://www.iucnredlist.org. access on january 2017. margaretha siahaan. 2015. ―pertanggungjawaban pidana terhadap pelaku yang mempeniagakan satwa yang dilindungi berdasarkan uu no. 5 tahun 1990 tentang konservasi sumber daya alam hayati dan ekosistemnya (studi putusan pengadilan negeri medan no. 1513/pid.b/2014/pn.mdn)‖, jurnal hukum, faculty of law, universitas sumatera utara: medan. muhammad erwin. 2008. hukum lingkungan dalam sistem kebijaksanaan pembangunan lingkungan hidup. refika aditama: bandung. muhammad iqbal. 2014. mahendra putra kurnia, erna susanti, tinjauan yuridis terhadap kepemilikan dan penjualan satwa langka tanpa izin di indonesia, jurnal beraja niti, issn: 2337-4608 vol. 3 no. 3, universitas mulawarman, samarinda. muhammad irfan, sarosa hamongpranoto, prija djatmika, penegakan hukum terhadap tindak pidana pembunuhan satwa orang utan yang dilindungi menurut undang-undang no. 5 tahun 1990 di wilayah ijin usaha http://www.iucnredlist.org/ 77 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 perkebunan kelapa sawit (studi kasus di wilayah hukum kabupaten kutai kertanegara), universitas brawijaya: malang nellemann, c., henriksen, r., raxter, p., ash, n., mrema, e. (eds). 2014. the environmental crime crisis – threats to sustainable development from illegal exploitation and trade in wildlife and forest resources. a unep rapid response assessment. united nations environment programme and grid-arendal, nairobi and arendal, www.grida.no. takdir rahmadi. 2011. hukum lingkungan di indonesia. pt. raja grafindo persada: jakarta. tri rahayu, 2015. ―perlindungan hukum terhadap satwa dari perdagangan liar (studi pada wildlife rescue centre, pengasih kulun progo, yogyakarta)‖. final project. faculty of sharia and law, uin sunan kalijaga, yogyakarta. unodc. 2013. transnational organized crime in east asia and the pacific. a threat assessment. united nations office on drugs and crime. united states agency for international development (usaid), 2015. perdagangan satwa liar, kejahatan terhadap satwa liar dan perlindungan spesies di indonesia: konteks kebijakan dan hukum changes for justice project, chemonics inc. oleh indonesian program, wildlife conservation society, 6 march 2015. yogyanto daru sasongko, rofikoh, jamal wiwoho, 2015. penegakan hukum perdagangan satwa liar dilindungi non-endemik di indonesia (kajian empiris efektivitas uu nomor 5 tahun 1990 tentang konservasi sumber daya alam hayati dan ekosistemnya), jurnal pasca sarjana hukum uns vol iii no. 2 july-december, universitas sebelas maret, surakarta. inka ayu arianti, 2011. pemidanaan terhadap pelaku tindak pidana terkait satwa lindung. fakultas of law, universitas airlangga, surabaya online http://theglobejournal.com/opini/taman-nasional-gunung-leuser-rahmatyang-tak-tersyukuri/index.php http://www.traffic.org/home/2015/1/23/more-than-2300-turtles-seized-atjakarta-international-airpo.html http://theglobejournal.com/opini/taman-nasional-gunung-leuser-rahmat-yang-tak-tersyukuri/index.php http://theglobejournal.com/opini/taman-nasional-gunung-leuser-rahmat-yang-tak-tersyukuri/index.php http://www.traffic.org/home/2015/1/23/more-than-2300-turtles-seized-at-jakarta-international-airpo.html http://www.traffic.org/home/2015/1/23/more-than-2300-turtles-seized-at-jakarta-international-airpo.html 78 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils 2 (1) may 2017, 55-78 http://journal.unnes.ac.id/sju/index.php/jils law adagium inde datae leges be fortior omnia posset law were made lest the stronger should have unlimited power jils (journal of indonesian legal studies) volume 5(2) 2020 391 available online at http://journal.unnes.ac.id/sju/index.php/jils research article discourse on legal expression in arrangements of corruption eradication in indonesia shubhan noor hidayat 1, lego karjoko2 , sapto hermawan3 1 master of laws student, universitas sebelas maret, indonesia 2, 3 department of administrative law, faculty of law, universitas sebelas maret, surakarta, indonesia  subhannoorhidayat@gmail.com submitted: june 13, 2020 revised: august 28 accepted: october 10, 2020 abstract the purpose of this research is explain and examine the expansion of the absolute competence of administrative court (hereinafter referred to as ptun) after the government administration law is promulgated and the implications of the application of the administrative law on legal certainty to eradicate and enforce corruption in indonesia. this research uses a normative juridical research method, and uses a statutory approach (statute approach). the results showed "that there are several forms of expansion of ptun competencies, such as the authority that acts factually, the authority, administrative authorization, decides on positive fictitious decisions, and discretionary trials". meanwhile, the implications of the government administration law on corruption are known as corruption crimes, which are true. so, in this context there are at least two problems, namely: “1. if the authorized court case is carried out by the state nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue 2, november 2020 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-5377-876x https://orcid.org/0000-0003-1527-594x 392 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils government which is submitted to the court simultaneously, to the state administrative court and to the district court in a corruption case? 2. if at any time a ptun decision has been issued stating that it is not authorized, but there is also a party who submits the case to the district court on charges of corruption. what is the attitude of the district court, whether to accept the ptun decision on the case or choose to override the ptun decision”. so the author is of the view that in this case there is concern that it will complicate the prosecution or eradication of criminal acts of corruption in the case of abuse of authority committed by government officials. keywords: administrative court; corruption; abuse of authority http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 393 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 391 table of contents ………………………………...………….….. 393 introduction ………………………………………………………. 393 corruption in the administrative law perspective …………………………………………………………... 402 i. a form of expanding the absolute competence of the state administrative court as an effort to prevent corrupt acts in the government administration law ………………………………….. 402 a. meaning of the state administrative decree …………………... 403 b. administrative efforts …………………………………………… 405 c. request for positive fictitious decisions ………………………. 407 d. authority to evaluate the elements of abuse of authority …... 408 e. authority to test discretion ……………………………………. 409 ii. legal certainty for the eradication of corruption crime ………... 411 conclusion …………………………………………..……………… 415 references …………………………………………………………… 415 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. how to cite: wicaksono, m. b. a., kurniawan, i. d., hidayat, s. n., & saputra, r. (2020). discourse on legal expression in arrangements of corruption eradication in indonesia. jils (journal of indonesian legal studies), 5(2), 391418. https://doi.org/10.15294/jils.v5i2.40670 introduction corruption has become a kind of daily phenomenon in indonesia. various institutions, actions, and studies on them are endeavored in a series ofactions largewhich are usually under the heading: "eradicating http://journal.unnes.ac.id/sju/index.php/jils 394 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils corruption". in line with these efforts, skepticism actually spreads around the actions and discourses of eradicating corruption, both criticalconstructive from among supporters or fighters of anti-corruption, as well as those that weaken politically from circle of collective elites who felt threatened by their interests.1 this shows that the eradication of corruption eradication of law is not only a matter of achievement or achievements of the kpk, but also the responsibility of various parties, ranging from advocacy and monitoring institutions, existing legal institutions, to the indonesian people themselves. so it is not wrong if there is a view that states that corruption is a reality of deviating social and legal norms that society does not want and is threatened with sanctions by the state. corruption is a form of abuse of position (position), power, opportunity to fulfill the interests of oneself and/or groups that go against common interests (society).2 law enforcement against corruption is very different from other crimes, including because there are many institutions that are authorized to conduct judicial proceedings against corruption as mentioned in the first alenia. this condition is a logical consequence of the predicate placed on the crime as extra ordinary crime. as a crime which is categorized as an extra ordinary crime, the crime of corruption has an extra ordinary power and destructiveagainst the joints of life of a state and nation. in the case that corruption is used as a tool to gain political power, it will result in governments and community leaders who are not legitimate in the eyes of the public. if this is the case, then the people will not believe in the government and these leaders, as a result they will not obey and submit to their authority. corrupt practices that are widespread in politics such as fraudulent elections, violence in elections, money politics and others can also cause damage to democracy, because to maintain power, corrupt rulers will use violence (authoritarianism)3 or spread corruption more widely in society.4 furthermore, it will lead to social political 1 ino susanti, refleksi ilmu hukum dalam analisis penegakan hukum pemberantasan korupsi di indonesia, 1 jdh (jurnal dinamika hukum) 14. 123-133 (2014) 2 rb. soemanto, sudarto, sudarsana, pemahaman masyarakat tentang korupsi, 1 yustisia (jurnal yustitia). 3. 80-88 (2014). 3 susetiawan, “harmoni, stabilitas politik dan kritik sosial”, kritik sosial dalam wacana pembangunan, 17-18 (1997) 4 robin theobald, corruption, development and underdevelopment, 128 (1990) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 395 available online at http://journal.unnes.ac.id/sju/index.php/jils instability and social integration, due to conflicts between the rulers and the people. in fact, in many cases, this has resulted in a dishonorable fall in government power, as happened in indonesia.5 in the case of corrupt practices occurring in the bureaucracy of a country, it causes inefficiency of the bureaucracy and increases administrative costs in the bureaucracy. if the bureaucracy has been surrounded by corruption in its various forms, then the basic principles of a rational, efficient, and quality bureaucracy will never be implemented. the quality of service is definitely very bad and disappoints the public. only people who have it will get good service because they are able to bribe.6 this situation can lead to widespread social unrest, social inequality and possibly social anger which leads to the downfall of bureaucrats.7 so it is not wrong when nyoman united putra jaya said that “the negative consequences of the criminal act of corruption are very damaging to the order of life of the nation, corruption is a deprivation of economic rights and social rights of the indonesian people”.8 moreover, the most dangerous negative effect of corruption in the long term is the destruction of the younger generation. in a society where corruption has become daily food, children grow up with an antisocial personality, then the younger generation will perceive corruption as a common thing (or even culture), so that their personal development becomes accustomed to dishonesty and irresponsibility.9 if the young generation of a nation is in that condition, you can imagine how grim the future of that nation will be. even empirical research conducted by transparency international shows that corruption also results in reduced investment from domestic and foreign capital, because investors will think twice about paying higher than necessary costs in investing (such as bribing officials to obtain permits, fees security to the security forces so that the investment is safe and other unnecessary costs). since 1997, investors from developed countries (america, britain and others) have tended to prefer to invest 5 sukardi rinakit, the indonesian military after the new order. 67-73 (2005). 6 gerald m. meier dan james e. rauch, readings in comparative analysis, ed. 2, 536 (2005) 7 tunku abdul aziz. fighting corruption: my mission. 60 (2005). 8 nyoman sarekat putra jaya, beberapa pemikiran ke arah pengembangan hukum pidana. 69 (2008) 9 syed hussein alatas, the sociology of corruption, ed. 2. 62 (1996) http://journal.unnes.ac.id/sju/index.php/jils 396 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils their funds in the form of foreign direct investment (fdi) to countries with small levels of corruption.10 this shows the magnitude of the influence caused by the practice of corruption in a country besides detrimental to state finances, it can also eliminate the desire of investors who threaten the development of the indonesian economy and it is an obligation for all of us, especially the government to strive to eradicate and minimize the criminal act of corruption. meanwhile, law enforcement activities against corruption do not always meet expectations. “the political configuration of a country will affect the activities of law enforcers in enforcing law. this is because law enforcement against criminal acts of corruption always involves state officials or state officials. this is different if the parties are ordinary people, in this case law enforcers are freer to express their authority in upholding justice and law. in the event that one of the parties is a state or a state official, law enforcers will be extra careful in using their authority so that there will be an impression of being slow, selective and so on”.11 as it is known, the efforts taken to eradicate corruption in indonesia have been carried out for a long time, either by using various means, sanctions against corruption actors have been heavier, but almost every day we still read or hear news about corruption. news about hand-catching operations (ott) against corruption perpetrators is still common. there is even one case where corruption has affected almost all members of the legislature in a region, namely members of the malang city dprd, out of 45 members of the city dprd, 41 of which were caught red-handed by the corruption eradication commission (kpk). then, no less shocking was the news about the arrest of a member of the mataram city dprd who carried out extortion related to the aid for the rehabilitation of educational facilities affected by the earthquake in lombok, ntb.12 this shows that the disease of corruption in indonesia is severe enough so that members of the council have the courage to extort money, especially for education funds intended for natural disasters whose impact should be very difficult for people in the area. so it is appropriate, 10 david jay green, “investment behavior and the economic crisis in indonesia”, 2 journal of asian economics 15. 285-305 (2004). 11 romli atmasasmita, arah pembangunan hukum di indonesia, dalam komisi yudisial dan keadilan sosial, 116 (2008) 12 wicipto setiadi, korupsi di indonesia (penyebab, bahaya, hambatan dan upaya pemberantasan, serta regulasi), 3. legislasi (jurnal legislasi indonesia). 15. 249-262. (2018) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 397 available online at http://journal.unnes.ac.id/sju/index.php/jils government programs in an effort to eradicate corruption crimes must be strengthened and sustainable. not even taking an action that has the potential to erode the efforts to eradicate the criminal act of corruption, as the authors will discuss later in this paper. as it is known that in indonesia regarding the provisions eradication of corruption (tipikor) are regulated in "law number 31 of 1999 concerning corruption crime" which has been amended and supplemented by "law number 20 of 2001" (hereinafter referred to as corruption act). in article 3 of the anti-corruption law it is said that: “anyone who has the purpose of benefiting himself or someone else or a corporation, abuses his authority, opportunity or means because of his position or position which can harm the country's finances or the economy of the country, is punished with imprisonment life imprisonment or imprisonment for a minimum of 1 (one) year and a maximum of 20 (twenty) years and or a minimum fine of rp. 50,000,000.00 (fifty million rupiah) and a maximum of rp. 1,000,000,000.00 (one billion rupiah)”. the provision is based on the constitutional court decision number 25/puuxiv / 2016 which states that the word can be erased so that it implies that there must be a real and definite state loss resulting in a shift in article 3 of the corruption act from formal offenses to material offenses..13 but still, based on the interpretation and content of the article that has changed based on regulation the constitutional court number 25 / puu-xiv / 2016 if the article has been fulfilled, government officials or officials can be held criminally liable. then in 2014 law number 30 of 2014 formed concerning government administration (hereinafter referred to as the ap law) waswhich in article 21 states that: 1. "the court has the authority to accept, examine, and determine whether or not there is an element of abuse of authority carried out by government officials .. 13 see the decision of the constitutional court number 25 / puu-xiv / 2016 http://journal.unnes.ac.id/sju/index.php/jils 398 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. government agencies and / or officers can submit applications to the court to assess whether or not there is an element of abuse of authority in decisions and/or actions. 3. the court must decide upon the application as referred to in paragraph (2) no later than 21 (twenty one) working days after the application is submitted. 4. against the court's decision as referred to in paragraph (3), ancan appealbe appealed to the state administrative high court. 5. the state administrative high court must decide the appeal as referred to in paragraph 6. no later than 21 (twenty one) working days after the appeal is submitted. 6. the decision of the state administrative high court as referred to in paragraph (5) is final and binding”. seeing the contents of article 21 of the ap law above, it has implications for increasing absolute competence for the state administrative court (ptun) which is known beforehand that the absolute competence of the ptun is contained in article 47 of law no. 5 of 1986 which stipulates that the court has the duty and authority to examine, decide upon and resolve a state administration dispute. what is meant by said state administrative dispute, according to article 1 number 4 is a dispute arising in the field of state administration between a person or a legal entity with a state administrative agency or agency, both at the central and regional levels, as a result of the issuance of the administrative decree state, including employment disputes based on applicable laws and regulations.14 from the provisions in law no. 5/1986 it appears that ptun competencies are very narrow, only related to the state administrative decree which is considered detrimental to the community. decisions as they are known must be concrete, individual and final, apart from that ptun does not have the authority to try them. the above conditions last for almost 20 years, then in line with the increasing tasks that must be carried out by the government which is influenced by the understanding of the welfare state. coupled with the government's authority to discretion, namely freedom to take policy if there is no law that regulates it or vague 14 r wiyono, hukum acara peradilan tata usaha negara, 5. (2007) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 399 available online at http://journal.unnes.ac.id/sju/index.php/jils laws owned by the government. therefore, the competence of ptun contained in law no. 5 of 1986 is no longer relevant, because it is too narrow to only hear decisions that are concrete, individual and final. for the state administrative court as a sub system of the system judicialin indonesia based on ri law number 5 of 1986 concerning state administrative court as amended lastly with ri law number 51 of 2009 concerning second amendment to law ri number 5 year 1986 concerning state administrative court (peratun law) in article 47 regulates the competence of ptun in the judicial system in indonesia, namely the duty and authority to examine, decide upon, and resolve disputes state administrative.15 ver time, the competence of ptun has also developed, for example the authority to examine personnel dispute issues, public information disclosure disputes. however, that authority is felt to be insufficient to guarantee the protection of the rights of community members, some of whom are also human rights. soneeded that a much more comprehensive law isthat not only guarantees the rights of citizens but also becomes a reference for state officials in making policies.16 arguments built above are the main reasons that form the basis of the ap law in indonesia, the desire to provideprotection legalto every community that allows citizens to submit objections and appeals to decisions and/or actions, to government agencies and/or officials or superiors the official concerned. citizens may also submit claims against decisions and/or actions of government agencies and/or officers to administrative court states and as a reference for state officials in making policies. this can be seen in the "explanation of the general section paragraph 5 of law number 30 of 2014 concerning government administration, it is said that in order to guarantee protection to every citizen of the community, this law allows citizens to submit objections and appeals against decisions and / or actions, to the agency and / or government officials or superior officials concerned. citizens can also file a lawsuit against the decisions and / or actions of government agencies 15 see article 47 of law number 51 of 2009 concerning second amendment to law number 5 of 1986 concerning state administrative courts. 16 ridwan, et. al, perluasan kompetensi absolut pengadilan tata usaha negara dalam undang-undang administrasi pemerintahan, 2 iustum (jurnal hukum ius quia iustum) 25. 339-358. (2018) http://journal.unnes.ac.id/sju/index.php/jils 400 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils and / or officials to the state administrative court, because this law is the material law of the state administrative court system. then for the argument as that the ap law is used as a reference for state officials in making decisions, it is stated in paragraph 8 that: “government administration arrangements in this law guarantee that decisions and / or actions of government agencies and / or officials against citizens cannot be done arbitrarily. with this law, citizens will not easily become objects of state power”.17 however, the main problem is in the formation of the ap law, especially article 21 of the ap law concerning the testing of abuse of authority by ptun, seems to forget the formal side18 and only focus on the formation of legislation. it finally adds new problems, as it is said in the research ridwan, despan heryansyah, and dian kus pratama, which says that:19 “the expansion of absolute competence in administrative court creates legal effect of its own either formally or materially, and in practice there are also problems new arising from the expansion. this is because in the ptun itself has long established a standardized system and procedural law, of course it has not accommodated the existence of these new authoritie”. this certainly causes the absence of" regulating "(regulatiry) between the ap law which causes an expansion of the absolute competence of ptun, coupled with the existence of conflict norms that cause uncertainty20 between article 21 ap act and provisions of article 3 of the law on 17 general section paragraph 5 of law number 30 of 2014 concerning government administration 18 in the explanation of law number 30 of 2014 concerning government administration it is clear that “............. this law is a material law of the state administrative court system.”. 19 the results of interviews conducted by ridwan, et.all show that: "so far there have been difficulties by the judges in exercising the authority mandated by law no. 30 of 2014, because since the beginning the judges have only trained to implement law no. 5 of 1986. this of course it has an impact on the professionalism and quality of decisions issued by judges”, see ridwan, et. al, supra note 16, at 343. 20 regulatory and certainy legal rules are needed in order to support the functioning of the legal system properly and smoothly. for further reading, please also see mirza satria buana, hubungan tarik-menarik antara asas kepastian hukum (legal certainty) dengan asas keadilan (substantial justice) dalam putusanputusan mahkamah konstltusi, 34 (2010) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 401 available online at http://journal.unnes.ac.id/sju/index.php/jils corruption21 juncto article 5 and article 6 of law number 46 year 2009 concerning corruption criminal (corruption law court court),22 which one of the elements regulates corruption as a result corruption of acts ofabuse of authority, where absolute competence to examine the matter is given to the corruption court. meanwhile, based on the ap law, the state administrative court through article 21 of the law is given the authority or competence to test whether or not there is an element of abuse of power committed by government officials in a region in indonesia in the event of state financial losses resulting from the abuse of power, which is a problem is that until the law is enacted, the ptun court has never been given the authority to try this matter, the ptun is only given the authority to examine the decisions of state administrative bodies or officials who in their decisions have used their authority for other purposes than the purpose for which the authority was granted.23 seeing the preamble of article 53 paragraph (2) of law number 5 of 1986 regarding state administrative courts (ptun law), the ptun is not actually authorized to examine the elements of abuse of authority committed by officials who are indicated to cause losses to state finances. so based on the above problems, through this paper the author will describe and discuss how "the form of expanding the absolute competence of the state administrative court as an effort to prevent (preventive) corruptive acts in the ap law" and "legal uncertainty in an effort to eradicate corruption in indonesia. after the formation of the ap law ". 21 the anti-corruption law was enacted on august 16, 1999 (state gazette of 1999 number 140, additional state gazette 3874). meanwhile, law number 20 of 2001 was promulgated on november 21, 2001 (state gazette of 2001 number 134, additional state gazette 4150). 22 the corruption court law was enacted on 29 october 2009 (state gazette of 2009 number 155, additional state gazette number 5074). 23 see article 53 paragraph (2) of law number 5 of 1986 regarding state administrative courts http://journal.unnes.ac.id/sju/index.php/jils 402 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils corruption in the administrative law perspective i. a form of expanding the absolute competence of the state administrative court as an effort to prevent corrupt acts in the government administration law absolute competence is related to the authority of the administrative court to examine and adjudicate a dispute according to the object or material or principal of the dispute. even though state administrative bodies / officials can be sued at ptun, not all actions can be tried by ptun. the actions of state administrative bodies / officials that can be sued in ptun are regulated in article 1 paragraph (3) and article 3 of law no. 5 of 1986, while the remaining actions become the competence of the general courts or military administrative courts or even for the problem of making regulations (regeling) which is made by the government and is of a general nature, the authority to try it rests with the supreme court through the right to judge material.24 article 47 of law no. 5 of 1986 states: the court has the duty and authority to examine, decide and settle state administrative disputes. what is a state administration dispute? article 1 number 4 of law no. 5 of 1986 also formulates disputes arising in the field of state administration, both at the center and in the regions, as a result of the issuance of state administrative decisions, including employment disputes based on applicable laws and regulations.25 ktun is the basis for the birth of a state administration dispute. what is ktun? article 1 number 3 formulating ktun is a written stipulation issued by a state administration body or official containing legal 24 moh mahfud md, lingkup kompetensi peradilan tata usaha negara dan kapasitas tuntutan atas satu tuntutan administrasi, quoted from. sf marbun, peradilan administrasi negara dan upaya administrasi di inodnesia, 41 (1997) 25 philipus m hadjon, et.al., pengantar hukum administrasi indonesia (introduction to the indonesian administrative law), cetakan keenam. 318. (1999) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 403 available online at http://journal.unnes.ac.id/sju/index.php/jils action on state administration based on applicable legislation that is concrete, individual and final, which results in legal consequences for a person or entity civil law. the provisions in law no. 5/1986 were deemed no longer relevant to be maintained, so the government issued law no. 30 of 2014 concerning government administration as its successor. the issuance of this act provoked pros and cons among administrative law experts related to various materials that were arranged, especially in terms of expanding the absolute competence of ptun. uu no. 5 of 1986 concerning state administrative court is deemed no longer relevant to the development of society, so it must be renewed, namely through the presence of law number 30 of 2014 concerning government administration. while the government's actions in running the government must also be given a reference. so the substance of this government administration act gives a lot of new authority to ptun. many people call it the ptun material procedural law. some of the authorities mandated by law no. 30 of 2014, based on the study of researchers include the following: a. meaning of the state administrative decree referring to law no. 5 of 1986 as also regulated in law number 51 of 2009, that the meaning of the decree of the state administration is a written stipulation issued by the state administration agency or officer which contains the legal action of the state administration based on statutory regulations applicable, which are concrete, individual, and final, which cause legal consequences for a person or private legal entity.26 compare with article law number 30 of 2014, tun decree is interpreted: "written decree issued by the government agency and / or officer in the administration of government".27 this provision does not yet provide a concrete explanation regarding the criteria of the decree. then in article 87 transitional provisions 28 the criteria of the state administrative decree shall be understood as: 26 see article 1 number 3 of law number 5 of 1986 and article 1 number 9 of law number 51 of 2009 27 see article 1 number 7 of law no. 30 of 2014. 28 many have criticized the detailed provisions of this decision that are only included in the transitional terms. because the substance of this transitional provision is very basic, it is actually placed in the core article of the law. there are even experts who say that this provision http://journal.unnes.ac.id/sju/index.php/jils 404 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils 1) “a written determination which also includes factual action; 2) decisions of state administration agencies and / or officers in the executive, legislative, judicial, and other state administration circles; 3) based on statutory provisions and aupb; 4) is final in a broader sense; 5) decisions that have the potential to cause legal consequences; and / or 6) decisions that apply to community members”. from the provisions in article 87, some interesting notes are: first, if previously the decision was always associated with a concrete, individual, and final nature, where decisions that do not cover the three things cumulatively cannot be submitted to ptun. however, in this government administration act no longer must include these three characteristics, in this article it is only said "final in a broader sense". second, government administration is not only limited to decisions as in the ptun law, but also includes factual actions. this means that the government administration act equalizes the term decision with action. this factual action is a new term that is not yet known in the previous law, although theoretically it has been widely discussed by many administrative law experts. ptun handles the object in the form of government administrative actions (article 1 number 8 of the government administration law) which was originally tested by courts in the general court environment through acts against the law by officials (pmhp) using article 1365 of the civil code. even in article 85 of the law on government administration, it is stated that the filing of a lawsuit on government administration disputes that have been registered at a general court but have not yet been examined, with the enactment of this law transferred and resolved by ptun. from the monthly reports of all ptuns throughout indonesia there are no cases of delegation from the district court. third, the scope of government administrative arrangements that not only cover the executive field, but government in a broad sense, namely executive, legislative, and judiciary. this provision is clearly stated in article 4 which reads: the scope of government administrative contradicts hans kelsen's theory of stufenbau das rechts. see for example, yodi martono wahyunadi, kompetensi absolut pengadilan tata usaha negara dalam konteks undang-undang nomor 30 tahun 2014 tentang administrasi pemerintahan. 140-141. (2016) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 405 available online at http://journal.unnes.ac.id/sju/index.php/jils arrangements in this law covers all the activities of government agencies and / or government officials who carry out government functions within the scope of the executive, legislative, judiciary, and other state institutions. thus, at this time the decision that can be sued to the ptun is not only the decision of the president, governor, regent, or mayor as has been going on. but it also includes the decision of the chair of the dpr and the decision of the chairman of the supreme court. b. administrative efforts the existence of administrative efforts actually get resistance from many experts. so according to them it should no longer be regulated in the law. this condition is supported by the reality of the existence of administrative efforts which have so far been rarely successful in solving problems. yet according to the ptun law this administrative effort is a must. sf marbun, for example, states that the existence of administrative efforts has several technical issues, namely: the absence of procedural law, lack of information, assessment of policy aspects, determination of deadlines and lack of facilities.29 administrative efforts regulated in the ptun law, the law on civil apparatus (law no. 5 of 2014), and the government administration law are in principle the same, namely administrative objections and appeals. addresat filing objections and administrative appeals is also the same, namely objections filed to officials who issue decisions while administrative appeals are submitted to superiors of officials who issue decisions or other agencies.30 however, there are differences in the process leading to a lawsuit in the ptun law and the government administration act. in the ptun law regime, if a dispute resolution requires administrative efforts, all administrative efforts must be taken first. the court is only authorized to hear cases if the administrative efforts available have been taken by the community. whereas in the government administration law regime, article 75 paragraph (1) states, "citizens who are harmed by a decree and / or actions may submit administrative efforts to government officials or 29 sf marbun, peradilan administrasi…. supra note 24, at 102-103 30 tri cahya indra permana, catatan kritis terhadap perluasan kewenangan mengadili peradilan tata usaha negara, 5. (2016) http://journal.unnes.ac.id/sju/index.php/jils 406 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils superiors of officials who determine and / or make decisions and / or actions". some argue that the word "can" in article 75 paragraph (1) of the uuap is an addresat norm which means that one may not exercise his right to submit administrative efforts because he accepts the decision / action, but when the person concerned will file a lawsuit then the administrative effort available it is still mandatory to be taken first. this opinion arises because the government administration act does not explicitly require administrative efforts to be taken before filing a lawsuit with the administrative court. however, there are still other laws which require administrative efforts that have not been firmly revoked so that they are still relevant using administrative efforts. however, there are also those who argue that in the government administration law there is no rule that the new court is authorized to examine, hear, and resolve disputes when all administrative efforts have been taken first. this means, if the community members choose not to use administrative efforts and directly file a lawsuit it remains justified. therefore the court cannot declare the claim as unacceptable on the grounds that the plaintiff has not yet taken administrative measures. another principle difference is that in the ptun law resulting from public dissatisfaction over the settlement of administrative appeals, then submit a lawsuit to the state administrative high court (pt tun), based on article 51 paragraph (3) of the ptun law which states, "the state administrative high court is tasked with and have the authority to examine, decide upon and settle at the first level the state administration dispute referred to in article 48 ". whereas according to the government administration law which has the authority to adjudicate due to this administrative effort is the state administrative court (ptun), in article 76 paragraph (3) the government administration law states, "in the event that the citizens do not accept the settlement of appeals by the superiors' officials, citizens can filed a lawsuit to the court ". article 1 number 18 of the government administration law states that what is intended by the court in this law is the state administrative court. ptun's absolute absolute competence according to the government administration act is to test the consequences of administrative efforts that are not approved by the community. while previously it was the competence of the state administrative high court. thus there are two http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 407 available online at http://journal.unnes.ac.id/sju/index.php/jils legal norms governing administrative efforts. in relation to the completion of administrative efforts the community members still want to submit to the court, there are two courts namely ptun in accordance with article 48 of the peratun law and to the ptun in accordance with article 76 paragraph (3) of the uuap. c. request for positive fictitious decisions there is a principle difference between the ptun law and the ap law regarding negative fictitious decisions and positive fictitious decisions. article 3 of the ptun law regulates negative fictitious decisions, namely if a state administration agency or officer does not issue the petition for a decision while the time period has passed, then the state administration agency or official is deemed to have refused to issue the said decision. according to article 53 uuap in principle regulates if within a specified time limit, the government agency or officer does not issue and / or make a decision and / or action, then the application is considered legally granted. in this positive fictitious decision, the applicant does not automatically obtain the results of his application, but must first submit a request to the administrative court to obtain a decision on receipt of the request. ptun must decide on the application no later than 21 (twenty one) working days after the application is submitted. the ptun decision is final and binding, there is no other remedy. government agencies and / or officers must determine the decree to implement the ptun decision no later than 5 (five) working days after the decision of the court is determined. completely regulated in article 53: 1) "the deadline for the obligation to determine and / or make a decision and / or action in accordance with the provisions of the legislation. 2) if the provisions of the legislation do not specify the time limit for the obligations referred to in paragraph (1), the government agency and / or officer shall determine and / or make a decision and / or action within a maximum period of 10 (ten) working days after the application is received completely by the government agency and / or officer. 3) if within the time limit referred to in paragraph (2), the agency and / or government official does not stipulate and / or make a decision and / or action, then the said application is considered legally granted. http://journal.unnes.ac.id/sju/index.php/jils 408 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils 4) the applicant submits an application to the court to obtain a decision on receipt of the application as referred to in paragraph (3). 5) the court is obliged to decide on the application referred to in paragraph (4) no later than 21 (twenty one) working days after the application is submitted. 6) government agencies and / or officials are obliged to determine a decision to implement the court's decision as referred to in paragraph (5) no later than 5 (five) working days after the decision of the court is determined ”. the birth of positive fictitious decisions is inseparable from the change in the paradigm of public service which requires government agencies or officials to be more responsive to community requests. one of the basic desires and direction of legal politics in government administration laws is to improve the quality of government administration. the reality is that ptun is domiciled in the provincial capital, making it difficult for justice seekers to gain access to justice. the condition of some regions which are geographically difficult or expensive, according to the writer, is not effective with positive fictitious provisions through the ptun. d. authority to evaluate the elements of abuse of authority the government administration act gives ptun the authority to assess whether or not there is an element of abuse of authority committed by a government agency or official. this provision is regulated in article 21 of law no. 30 of 2014, which reads in full: 1) "the court has the authority to accept, examine and decide whether or not there is an element of abuse of authority carried out by government officials; 2) government agencies and / or officials may submit an application to the court to assess whether or not there is an element of abuse of authority in decisions and / or actions. 3) the court is obliged to decide on the application referred to in paragraph (2) no later than 21 (twenty one) working days after the application is submitted. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 409 available online at http://journal.unnes.ac.id/sju/index.php/jils 4) against the court's decision as referred to in paragraph (3), an appeal can be appealed to the state administrative high court. 5) the state administrative high court must decide the appeal as referred to in paragraph (4) no later than 21 (twenty one) working days after the appeal is submitted. the decision of the state administrative high court as referred to in paragraph (5) is final and binding”. e. authority to test discretion ermessen's discretion or freies are defined as a means of providing space for officials or state administrative bodies to take action without having to be fully bound to the law, or actions taken by prioritizing the achievement of objectives (doelmatigheid) rather than in accordance with applicable law (rechtmatigheid).31 freies ermessen is used mainly because: first, emergency conditions that are not possible to set written rules, second, there are no or no regulations governing them, third, there are rules but the editorial is vague or multiple interpretations (vogue norm),32 meanwhile, according to bagir manan, the characteristics of policy regulations are :33 1) "policy regulations are not statutory regulations. 2) the principles of restriction and testing of laws and regulations cannot be applied to policy regulations. 3) policy rules cannot be tested wetmatigheid, because there really is no legal basis for making policy policy decisions. 4) the policy rules were made based on ermessen's freies and the absence of administrative authority concerned making laws and regulations. 5) testing of policy regulations is more up to doelmatigheid and therefore the test stones are general principles of proper governance. 6) in practice, various forms and types of rules are given, in the form of decisions, instructions, circulars, announcements, etc., which can even be found in regulations. 31 bachsan mustafa, pokok-pokok hukum administrasi negara, see also, ridwan hr, tiga dimensi hukum administrasi dan peradilan administrasi, cetakan pertama, 81 (2009). 32 id. 33 id., at. 85 http://journal.unnes.ac.id/sju/index.php/jils 410 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils based on the description above, according to bagir manan, the restriction on the implementation of discretion is the general principles of proper governance. if a policy complies with these principles, it can continue but if not, the policy can be canceled. so based on ermessen's freies, the government can issue various policies both in the form of regulations, announcements, guidelines, circulars, instructions, and so forth. philipus m hadjon added that ermessen's freies had to be written down in order to become policy regulations.34 in connection with this discretion there is a dilemma, on the one hand discretion and policy regulations are the necessary governance and instruments of governance that are even called "discretion is a heart of agency power" for the implementation of government tasks, especially in providing services to citizens effectively and efficient. but on the other hand, discretion and policy regulations have aroused suspicion, concern, and are considered a ruthless master. discretion is like a double-edged sword: it can be used for good and benefit as well as for evil and arbitrariness.35 provisions regarding discretion are regulated in article 22 of the administration law. it was stated that the use of discretion was intended to: expedite the administration of government; fill the legal vacuum; provide legal certainty; and overcome the stagnation of government in certain circumstances for the benefit and public interest.27 provisions on discretion cover two things at once, namely the procedure for the use of discretion by state officials and discretionary testing if there are people who feel their rights are violated on the implementation of a discretion. discretion that can be sued in the state administrative court and canceled by the administrative court is a discretion which: is categorized as over authority, is categorized as a confusing authority, and is categorized as an arbitrary act if issued by an unauthorized official. these three categories of discretion which according to articles 30, 31 and 32 become invalid or can be canceled. however, in the articles governing discretion, indeed there is not a single word that clearly gives the right to test for discretion is ptun. 34 philipus m. hadjon, et, al., pengantar hukum administrasi indonesia. 152. (1993) 35 ridwan,. supra note 16. at 153. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 411 available online at http://journal.unnes.ac.id/sju/index.php/jils ii. legal certainty for the eradication of corruption crime as the authors stated earlier that the ap law grants authority to ptun to assess whether or not there is an element of abuse of authority committed by a government agency or official, this can be seen in article 21 of the ap law.36 in the provisions of the article it is stated that: a. "the court has the authority to accept, examine, and decide whether or not there is an element of abuse of authority committed by government officials; b. government agencies and / or officials can submit a request to the court to assess whether or not there is an element of abuse of authority in decisions and / or actions; c. the court is obliged to decide the application as intended in paragraph (2) not later than 21 (twenty one) working days from the time the application is submitted; d. an appeal may be submitted to the court's decision as referred to in paragraph (3) at the high state administrative court; e. the high state administrative court is obliged to decide on the appeal as referred to in paragraph (4) not later than 21 (twenty one) working days after the appeal is filed; f. the decision of the state administrative high court as referred to in paragraph (5) is final and binding ”. so, what is meant by abuse of authority? uuap provides quite detailed limitations in this law. however, the scope of abuse of authority in uuap differs from what is regulated in article 53 paragraph (2) letter b of law no. 5 of 1986, namely the state administrative body or officials when issuing a decision as referred to in paragraph (1) have used their authority for other purposes from the purpose of granting that authority. that reason 36 a. “the court has the authority to accept, examine, and decide whether or not there is an element of abuse of authority committed by government officials; b. government agencies and / or officials can submit a request to the court to assess whether or not there is an element of abuse of authority in decisions and / or actions; c. the court is obliged to decide the application as intended in paragraph (2) not later than 21 (twenty one) working days from the time the application is submitted; d. (3) an appeal may be submitted to the court's decision as referred to in paragraph (3) at the high state administrative court; e. (2) the high state administrative court is obliged to decide on the appeal as referred to in paragraph (4) not later than 21 (twenty one) working days after the appeal is filed; f. the decision of the state administrative high court as referred to in paragraph (5) is final and binding. http://journal.unnes.ac.id/sju/index.php/jils 412 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils is interpreted as an abuse of authority. in the uuap expand and distinguish three forms of abuse of authority as stipulated in article 17 which reads as follows: 1) government agencies and / or officials are prohibited from abusing authority. 2) prohibition of abuse of authority as referred to in paragraph (1) includes: a. prohibition beyond authority; b. prohibition of mixing up authorities; and / or c. prohibition of acting arbitrarily ”. the criteria for exceeding authority, confusing authority, and acting arbitrarily are further regulated in article 18 as follows: 1) "government agencies and / or offices are categorized as exceeding the authority as referred to in article 17 paragraph (2) letter a if the decree and / or actions taken: a. beyond the term of office or the validity period of the authority; b. beyond the territorial validity of the authority; and / or c. contrary to statutory provisions. 2) government agencies and / or officials are categorized as confusing the authority as referred to in article 17 paragraph (2) letter b if the decree and / or actions taken: a. outside the scope of the field or material given authority; and / or, b. contrary to the stated purpose of the authority. 3) government agencies and / or offices are categorized as acting arbitrarily as referred to in article 17 paragraph (2) letter c if the decree and / or actions taken: a. without the basis of authority; and / or b. contrary to court decisions that have permanent legal force". in the republic of indonesia supreme court regulation (perma) no. 4 of 2015 concerning procedure guidelines for evaluating the abuse of authority, regulating parties in the application, government agencies and / or officers who feel that their interests have been impaired by the results of supervision by the government internal control apparatus can submit an application to the competent court containing demands that the decision http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 413 available online at http://journal.unnes.ac.id/sju/index.php/jils and / or acting of acting officials government is declared to have or not an element of abuse of authority.37 as the author mentioned earlier that the implications of the enactment of the ap law in particular article 21 of the ap law resulted in the competence of ptun to test the validity of government actions in terms of law (legality). the concept of abuse of authority in uuap is a mistake of private officials (maladministration). for this reason, it is not appropriate for personal responsibility to become ptun's competence. in addition, the formulation of abuse of authority in article 17 paragraph (2) uuap: a. "prohibition goes beyond authority; b. prohibition of confusing authority; and / or c. prohibition of arbitrary actions ". in the opinion of the author the concept of abuse of authority in uuap violates the theory of administrative law. abuse of authority should use authority not in accordance with the purpose of granting authority, known as the principle of detournement de pouvoir. this can be seen in "article 53 paragraph (2) of law number 5 of 1986 concerning state administrative courts, which states that the reasons that can be used in the lawsuit as referred to in paragraph (1) are": a. the state administration decision being sued contradicts the prevailing laws and regulations; b. at the time of issuing the decision as referred to in paragraph (1), the state administration agency or officer has used their authority for another purpose than the purpose for which the said authority was granted; c. at the time of issuing or not issuing the decision as meant in paragraph (1), the state administration agency or official after considering all the interests related to the decision should not arrive at the decision making or not. another implication related to the abuse of authority is the intersection between criminal law and state administrative law. as it is known that in the corruption law it is also stated that one of the main elements of corruption is the abuse of authority. so, in this context there are at least two problems, namely: 1. what if there is an abuse of authority 37 article 3 of the supreme court regulation no. 4 of 2015 concerning guidelines for conducting the assessment of elements of abuse of authority http://journal.unnes.ac.id/sju/index.php/jils 414 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils by state officials brought to two courts simultaneously, namely to the administrative court and to the district court in corruption cases? 2. if at any time the ptun decision is issued stating that there is no abuse of authority, but there are also parties who submit the case to the district court on corruption charges. what is the attitude of the district court, whether to accept the ptun decision on the case or instead choose to override the ptun decision. furthermore, even though perma no. 4 of 2015 has stated that ptun has the authority to accept, examine, and decide upon an application for assessment of whether or not there is abuse of authority in the decisions and / or actions of government officials prior to criminal proceedings. four words from before the criminal process ". the word is a keyword limiting the intersection of authority to try to abuse the authority between the tun court and the corruption court. however, "perma number 4 of 2015 does not provide an explanation of what is meant by criminal proceedings".38 it can be explicitly interpreted “that the limitation in the form of provisions prior to the existence of this criminal process seems to give the impression that the criminal justice process can override the administrative court process related to the assessment of whether or not there is an abuse of power”.39 therefore, it is appropriate for and for legal certainty to carry out an elaboration and harmonization of the two laws (the ap law and the anti-corruption act) for the purpose of more effective eradication of corruption in the future, in order to avoid chaos in society as a result of ineffective regulations. regarding the eradication of corruption. like a chaotic society, no social system can work well. every individual in society will only be selfish (self-interest), even selfishness.40 apart from that, it is also to eliminate or minimize the negative influence of corruption on the sense of social justice and social equality. corruption causes sharp differences between social groups and individuals 38 budi suhariyanto, persinggungan kewenangan mengadili penyalahgunaan diskresi antara pengadilan tun dan pengadilan tipikor, 2 jhp (jurnal hukum dan peradilan) 7, 213-236 (2018). 39 dani elpah, titik singgung kewenangan antara pengadilan tata usaha negara dengan pengadilan tipikor dalam menilai terjadinya penyalahgunaan wewenang, 69 (2016) 40 m. umer chapra, islam and economic challenge, usa: iiit dan the islamic foundation, 220. (1995) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 415 available online at http://journal.unnes.ac.id/sju/index.php/jils both in terms of income, prestige, power, and others,41 it is also necessary to make efforts to revise the state administrative court law considering that several provisions in the ap law have not been regulated in formal regulations, namely the state administrative court law conclusion based on the analysis that the author has presented and described in the above paper, the authors conclude that: "first, the form of expanding the absolute competence of the state administrative court according to law number 30 of 2014 concerning government administration includes: expanding the meaning of decisions and government administration, which includes executive, legislative and judicial government decisions and factual actions; testing the results of administrative efforts; application for a fictitious positive decision ”; "second, the implication of expanding the absolute competence of ptun in the government administration law is that there is a conflict with the theory of administrative law so that it confuses the public and law enforcement officials themselves as well as creating uncertainty regarding law enforcement on corruption in indonesia," which in this case is feared will complicate prosecution or eradicating the criminal act of corruption in the case of abuse of authority by government officials. references atmasasmita, r. 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(2018). perluasan kompetensi absolut pengadilan tata usaha negara dalam undang-undang administrasi pemerintahan, jurnal hukum ius quia iustum, 25(2), 339-358 saputra, r. (2020). development of creative industries as regional leaders in national tourism efforts based on geographical indications. jurnal bestuur, 8(2), 108-120 suhariyanto, b. (2018) persinggungan kewenangan mengadili penyalahgunaan diskresi antara pengadilan tun dan pengadilan tipikor, jurnal hukum dan peradilan, 7(2), 213-236 susanti, i. (2014). refleksi ilmu hukum dalam analisis penegakan hukum pemberantasan korupsi di indonesia, jurnal dinamika hukum, 14(1), 123133 wahab, s. a. (2011). analisis kebijakan: dari formulasi ke penyusunan model model implementasi kebijakan publik. jakarta: bumi aksara. wahyunadi, y. m. (2016). “kompetensi absolut pengadilan tata usaha http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 417 available online at http://journal.unnes.ac.id/sju/index.php/jils negara dalam konteks undang-undang nomor 30 tahun 2014 tentang administrasi pemerintahan”, dissertation, jakarta: universitas trisakti. widodo, j. (2001). etika birokrasi dalam pelayanan publik. malang: citra media. widodo, j. (2004). membangun birokrasi berbasis kinerja. malang: banyumedia. wiyono, r. (2007). hukum acara peradilan tata usaha negara, cetakan peratama. jakarta: sinar grafika. http://journal.unnes.ac.id/sju/index.php/jils 418 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils quote power does not corrupt. fear corrupts... perhaps the fear of a loss of power. john steinbeck about authors shubhan noor hidayat is a student of master of law, universitas sebelas maret, indonesia lego karjoko is a senior lecturer at the department of administrative law, universitas sebelas maret, surakarta, indonesia. his areas of expertise include state administrative law and legal studies. some of his works have been published in various national and international journals, such as "setting of plantation land area limitation based on social function principles of land cultivation rights to realize social welfare promoting plantation" (jurnal dinamika hukum, 2017), "pengaturan tanah baluwarti sebagai kawasan cagar budaya yang berbasis budaya hukum jawa" (mimbar hukum, 2009), and "komparasi antara sistem hukum tanah nasional dengan sistem hukum tanah keraton yogyakarta" (yustisia, 2008). sapto hermawan is a lecturer at the department of administrative law, sebelas maret university, surakarta, indonesia. obtained a bachelor's degree (ugm, 2002), a master of laws (ugm, 2012), and a doctor of law (ugm, 2018) from universitas gadjah mada, yogyakarta, indonesia. his areas of expertise include state administrative law and legal studies. in addition to being a lecturer and researcher, currently, he also serves as the managing editor of the journal yustisia and is an editor and reviewer of several legal journals, both national and international. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 263 available online at http://journal.unnes.ac.id/sju/index.php/jils book review understanding the contents of indonesian civil law: a book review perkembangan hukum perdata di indonesia, sudikno mertokusumo, genta publishing yogyakarta, 2019, 206 pages, isbn 978-602-0757-08-7 reyhan nabillah azhari faculty of law, universitas negeri semarang, indonesia  reyhannazhari@students.unnes.ac.id https://orcid.org/0000-0002-0650-4766 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. title of book : perkembangan hukum perdata di indonesia author : sudikno mertokusumo language : bahasa indonesia publisher : genta publishing, yogyakarta pages : 206 pages year : 2019 how to cite azhari, r. (2020). understanding the contents of indonesian civil law: a book review perkembangan hukum perdata di indonesia, sudikno mertokusumo, genta publishing yogyakarta, 2019, 206 pages, isbn 978-602-0757-08-7. jils (journal of indonesian legal studies) 5(1), 263-266. https://doi.org/10.15294/jils.v5i1.34809 nationally accredited journal (sinta 2) jils (journal of indonesian legal studies) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue 1, may 2020 issn (print) 2548-1584 issn (online) 2548-1592 http://journal.unnes.ac.id/sju/index.php/jils 264 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils overview the book titled is perkembangan hukum perdata di indonesia (development of civil law in indonesia). written by sudikno mertokusumo, published by genta publishing in 2019. the book mainly talk about how far is the civil law evolve from times to time in indonesia. subjects & topics in this book it contains about the civil law deals with behavior that constitutes an injury to an individual or other private party, such as a corporation. examples are defamation (including libel and slander), breach of contract, negligence resulting in injury or death, and property damage. in civil cases, by contrast, cases are initiated (suits are filed) by a private party (the plaintiff); cases are usually decided by a judge (though significant cases may involve juries); punishment almost always consists of a monetary award and never consists of imprisonment; to prevail, the plaintiff must establish the defendant's liability only according to the "preponderance of evidence"; and defendants are not entitled to the same legal protections as are the criminally accused. from the outset, it can be said that civil law is a law that regulates the rights and obligations of individuals between one person and another in a family relationship or even in association; within society, the offense hangs along with a violation. in the context of placing the legal function as a community, one of them is that there are still many legacy products from the colonial era or the spirit of the old order which are still enforced as positive laws. but we must remember that positive law not only covers constitution. law is a protection of human or community protection. then there is a legal agreement. the first is the development of the legal agreement. law is the protection of the interests of humans or society. humans are living, developing, so human interests are developing both macro and micro. article 1313 bw reads: "eene overeenkomst is ene handeling waarbij een of meer personen zich jegens een of meer andere verbinden" which means "an agreement is an act between one or more persons who bound themselves with one or more others". article 1313 bw also stated that "an agreement is an act between two or more people who tie themselves together". after then development of the legal agreement, this book explain about capita selecta note legal agreement such as the validity of bw, based http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 265 available online at http://journal.unnes.ac.id/sju/index.php/jils on article 131 paragraph 2 is bw applies to europeans. what is meant by europeans according to article 163 verse 2 is are: 1. dutch people, 2. those who are not dutch, who are from europe, 3. japanese and subsequently those who are not included in 1 and 2, which in the country includes subject to family law based on the same principles as the netherlands, 4. those born in the dutch east indies, both legitimate and recognized and their descendants included in 2 and 3. according to article 11 ab jo article 131 paragraph 4 is for native indonesians to basically implement customary law, but native indonesians are permitted to voluntarily submit. after capita selecta this book cover about usury agreement, that contain about agreement, woeker (making history), history of the usury agreement, and the last is the usury agreement itself. this this chapter it mainly talked about the definition first of the sub chapter then it talks about how it effected in indonesia. there is exoneration. exoneration occurs when the conviction for a crime is reversed, either through demonstration of innocence, a flaw in the conviction, or otherwise. attempts to exonerate convicts are particularly controversial in death penalty cases, especially where new evidence is put forth after the execution has taken place. the transitive verb, "to exonerate" can also mean to informally absolve one from blame. then the last is the default that basically explain the meaning of default is self. then there is health law. a person with a mental disability can own property can have movable or permanent property, he must be protected against the dangers that threaten his property, theft, fraud and so on. basically, the protection of civil rights for people with mental disabilities has provisions in the civil code. but if it is desirable that there are special rules that are more detailed for people with mental disabilities it would not hurt if the things mentioned above are contained in it. the role of a notary public in this book it explains about it. the notary duties such as those listed in article 1 of the notary public relations (s 1860 no.3) are as general officials who are solely authorized to make an optical deed regarding all deeds, agreements and stipulations that are required by the public law or as requested by the public which is concerned. then we have the development of the civil law itself. http://journal.unnes.ac.id/sju/index.php/jils https://en.wikipedia.org/wiki/conviction_(law) https://en.wikipedia.org/wiki/crime https://en.wikipedia.org/wiki/death_penalty 266 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils writing the explanation in this book is quite easy to read. this book contains the basic of civil law, health law, the role of a notary public, then the development of the civil law in indonesia. in this book, with that in mind, this book great to people who doesn’t really understand about civil law, because in this book you will get the basic idea first. this book has so much conclusion or the writers opinion and the example of the case that occurs in indonesia that make a new reader or even people who doesn’t understand about the the legal agreement, health law, the role of a notary public, the development of civil law can understand can know understand it because it covers the basic idea then it has an example case that occurs in indonesia. sources & citations this book seems to have been written using a normative writing method in which the author gives his opinion on what developments have taken place in indonesia. because it uses a normative method or which takes data from various of source then put it the conclusion, in this book you can say that it has a few errors because of the normative writing method that give various of sources. conclusion this book content is quite easily understandable because the writer tell the basic of the topic such as the legal agreement, health law, the role of a notary public, the development of civil law and the sub topic from different source then put its own thinking or conclusion and an example of the case that occurs in indonesia at the end. about author reyhan nabillah azhari is undergraduate law student at faculty of law, universitas negeri semarang indonesia. he is student at international program at faculty of law. besides as student, author also involved in some research projects concerning to legal studies, as well as actively publishes his paper on some conferences both national and international. in 2019, he presented his paper on international conference in malaysia. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 295 available online at http://journal.unnes.ac.id/sju/index.php/jils research article cyber crime management among students an evaluation of legal correlates of cyber crime management among tertiary institutions students in nigeria (a case study of delta state) ngboawaji daniel nte1 , urowayinor kelita esq2, bribena kelvin enokie3, onyeka bienose4 1, 2 dept. of intelligence & security studies, novena university, nigeria 3 faculty of law, niger delta university, nigeria 4 global intelligence, peace and security institute, nigeria  bienoseonyeks@gmail.com submitted: march 7, 2020 revised: june 12, 2020 accepted: october 20, 2020 abstract this study investigated examined the legal correlates of cybercrime management amongst higher institution students in nigeria with special reference to some selected tertiary institutions in delta state, nigeria. a correlation approach of survey research design was adopted in this study. in order to address the problem of this study, seven research questions were raised and seven research hypotheses were formulated and tested at a .05 level of significance. this study revealed that the law can provide solutions to cyber crime management in nigeria. poverty is a factor responsible for cybercrime in nigeria. the law can promote intellectual property and ensure privacy rights. there are existing laws that adequately address challenges relating to cybercrimes. the study revealed that youths who are mostly male are the major perpetrator of cyber-crimes and the crime can be committed at any time of the day. the study found that nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue2, november 2020 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-1331-3511 https://orcid.org/0000-0002-5079-0202 296 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils unemployment, poverty, absence of effectual law, and corruption are the major causes of cyber-crime in the study area. based on the findings of this study, it was therefore recommended that collective vigilance detect and report to law enforcement agencies anyone suspected to be involved in cyber-crime. the federal government should empower the youths in terms of job creation and regularly engage the it organizations to develop strategies to curtail cyber-crime. keywords: law; cyber-crime; cyber-crime management; nigeria; higher institutions http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 297 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 295 table of contents ………………………………...………….….. 297 introduction ………………………………………………………. 297 method ………………………………………………………..……..... 307 data presentation and analysis of findings ……… 313 i. presentation of data …………………..…………………………….. 313 ii. analysis of data ……….…………………………………………….. 315 iii. test of hypotheses ………….……………………………………….. 320 iv. discussions of findings ………………….………………………….. 324 v. interpretation of findings ………………………………………….... 327 vi. summary ……………………………………………………………... 328 conclusion ……………………………………………………..…… 328 recommendations ………………………………………………. 329 references …………………………………………………………… 329 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. how to cite: nte, n. d., esq, u. k., enokie, b. k., & bienose, o. (2020). cyber crime management among students. jils (journal of indonesian legal studies), 5(2), 295-334. https://doi.org/10.15294/jils.v5i2.34005 introduction with the profound advancement of technology in this 21st century, the world has now become more or less a digital world. technology has brought together nations and the world has now become a global village. the economy of most nations in the world is accessible through the aid of http://journal.unnes.ac.id/sju/index.php/jils 298 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils electronic via the internet.1 the arrival of information communication and technology (ict) into many aspects of everyday life has led to the development of the modern concept of the information society. currently, there are nearly 2 billion internet users and over 5 billion mobile phone connections worldwide. according to a report given by the international telecommunications union (itu), as at 2011, there were more than 45 million internet users in nigeria, which is 26.5% of the population.2 the economic activities and national security depend largely on a secured cyberspace. through cyberspace, one is able to communicate with virtually everyone in the world and economic transactions have now become relatively easier. goods and services are routinely purchased and delivered electronically leading to significant changes in industries like journalism, travel and banking. notwithstanding these advantages, it is through this same cyberspace that the economy, privacy and social interactions have become unsecured. the growing convenience of the cyberspace comes at a cost. the development of the internet and the widened access to computer technology has not only granted new opportunities for economic activities but has also created opportunities for those involved in illegal activities.3 the flourishing connection between organized crimes and the internet has increased the insecurity of the digital world. the arrival of the internet has been pointed as the remote cause for lots of ingenious crimes hitherto unknown to our criminal law like the online credit card scheme. some scholars have interestingly argued that ‘in the internet nobody knows you are a dog’. internet connected activities are susceptible to crime and can lead to victimization as effectively as common physical crime. as a result of this development, criminal and other harmful acts aimed at computers – so called ‘cyber-crimes’ are on the rise. crimes like online fraud and hacking attacks are just some example of cybercrimes that 1 a. ajewole, curbing cybercrime in nigeria. fighting the masked enemy and promoting productive alternative for the youth 2010 [hereinafter as ajewole]; f. oyesanya, nigerian internet 419 on the loose 2004 [hereinafter as oyesanya]; a.s. oyewole & a. obeta, an introduction to cyber crime 2002 [hereinafter as oyewole & obeta]. 2 id., at. 57; o. ayantokun, fighting cyber-crime in nigeria, information-system, 2006 [hereinafter as ayontakun]; r. imhof, cybercrime and telecommunication law, 115-117 (rochester institute of technology usa, information and communication technology, 2010). 3 d. morley, and c. s. parker, understanding computers, today and tomorrow 312-313 (11th edition, published by thomson course technology, usa, 2007) [hereinafter as morley & parker]. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 299 available online at http://journal.unnes.ac.id/sju/index.php/jils are committed in a very large form every day. the internet has now created a fertile ground for false pretences, fraud and other fraud related crime. and one reason why the issue of cybercrime remains challenging is the constant technical development, and also the changing means and ways in which the offences are committed. cybercrimes have been described as one of the fastest growing criminal activities on the planet. cybercrimes range from content-related offences, copyright and trademark related offences, computer-related offences, offences against the confidentiality, integrity and availability of computer data and systems.4 in nigeria today, many internet assisted crimes are committed daily in various forms such as identity theft, desktop counterfeiting, cyber harassment, fraudulent electronic mails, automated teller machine spoofing, pornography, piracy, hacking, phishing and spamming. some perpetrators of the online fraud in nigeria usually referred to as ‘yahoo boys’ are taking advantage of e-commerce system available on the internet to defraud unsuspected victims. to underscore the high rate of cybercrime in nigeria, nigeria is the third jurisdiction after china and united states of america, where the world records the highest number of cybercrimes. the increasing rates of cybercrime in the society have now become a strong threat to nigeria’s e-commerce growth and the security of nigeria as a whole. thus, giving rise to the imperative need for a very efficient legal framework on cybercrimes in nigeria.5 the law provides rights and duties and defines crimes such as cybercrimes and punishment or provides for establishments of institutions etc. or procedural law which provides mechanism for enforcement of such rights/ duties or how to enforce laws that bother on cybercrimes. cybercrime on the other hand involves a reference to a crime related to the cyberspace, computers, computer networks and the internet.6 4 ajewole, supra note 1, at. 58; morley & parker, supra note 3. 5 a. a. ahmed, hack no more, internet security: attacks and defence 71 (ahmadu bello university press limited, nigeria, 2010); k. kumar, cyber laws, international property and e-commerce security 74-76 (dominant publishers and distributors, new delhi, 2003); t. salihu, impact of computer appreciation in military technology, a commandant’s paper submitted to nigerian army school of military police, nigeria, (school of postgraduate studies, 2006); g. sesan, the new security war, 2010. 6 mcconnell, cybercrime and punishment, archaic laws threaten global information (2010); morley & parker, supra note 3. http://journal.unnes.ac.id/sju/index.php/jils 300 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils cybercrimes include: various conducts relating to the use of computers in criminal behaviour, including conduct relating to the obtaining and communicating of restricted information; the unauthorized accessing of information from financial institutions, the nigerian government, and “protected computers”; the unauthorized accessing of a government computer; fraud; the damaging of a protected computer resulting in certain types of specified harm; trafficking in pass words; and extortionate threats to cause damage to a “protected computer”.7 until 15th may 2015, when the nigerian cybercrime act 2015 was signed into law, there was no specific adjectival law on cybercrime in nigeria. the situation was like the philippines’ in 2000 when the ‘love bug virus’ spread throughout the world, and the suspect could not be effectively prosecuted due to the lacunae in the philippines’ cyber-criminal legislation. the only relevant legislation was municipal laws, like the economic and financial crimes commission act, the criminal code (as applicable in the southern nigeria) and penal code (which is operational in the northern nigeria). unfortunately, this traditional legislation had little or less to offer in respect of cyber-related offences. this made it almost impossible to secure convictions on offences relating to cybercrime in nigeria, except in the few situations where confessional statements are extracted from the offenders by the investigating officers and/or prosecution. nigerian cybercrime act 2015 provides an effective, unified and comprehensive legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in nigeria. this act also ensures the protection of critical national information infrastructure, and promotes cyber security and the protection of computer systems and networks, electronic communications, data and computer programs, intellectual property and privacy rights.8 laws on cybercrime became necessary considering the fact that cybercrime has become one of the great legal frontiers in nigeria and the world over. between 2000 and 2012, the internet expanded at an average rate of 566.4% on a global level, while an estimated 2.4 billion people are “on the net”, six trillion web pages are accessible, 2.2 billion google searches per month and 12% of all global trade happens online, with about 7 ayantokun, supra note 2. 8 k. hidayatullah, k cyber crime and its consequences, (national law university raipur, chhattisgarh, new raipur, 2000); mcconnell, supra note 6, at. 15. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 301 available online at http://journal.unnes.ac.id/sju/index.php/jils $240 million lost from global cyber-crime. in other words, the rapid growth of computer technology carries with it the evolution of various crimes on the internet. in recent years, there has been considerable focus within the criminal justice system on computer-related crime, as cybercrime has garnered increased attention because computers have become so central to several areas of social activity connected to everyday life. internet users especially those in tertiary institutions in delta state, nigeria innovate freely on various platforms, reaching out to more people, aiding ubiquity of internet features and with attendant high utility and pecuniary returns.9 although the internet has been a double-edged sword providing opportunities for individuals and organizations, it brings with it an increased information security risk. cybercrime has in recent time become a crucial threat to many countries including nigeria which has necessitated many governments from around the world to enact sturdy legislation and also put in place coherent procedural measures to tackle cyber-criminals; which involve putting effective task forces, efficient legislation and tough sentencing regimes in place for those convicted of acts involving cybercrime. it is a truism that the cyber world has no definite territorial boundaries; it is not restricted to local government or states in nigeria. cybercrime offences know no limits to physical geographic boundaries and have continued to create unprecedented issues regarding to the feasibility and legitimacy of applying traditional legislations based on geographic boundaries. these offences also come with procedural issues of enforcement of the existing legislations and continue to subject nations with problems unprecedented to its sovereignty and jurisdictions.10 in nigeria today, numerous internets assisted crimes are committed daily in tertiary institutions in delta state, nigerian various forms such as identity theft, desktop counterfeiting, internet chat room, cyber harassment, fraudulent electronic mails, automated teller machine spoofing, pornography, piracy, hacking, phishing, and spamming. usually, these crimes are committed in forms like sending of fraudulent and bogus 9 for further reading, please also see e. roger, e. diffusion of innovation, 1995; m. k. rogers m.k., a social learning theory and moral disengagement analysis of criminal computer behaviour. an exploratory study, (university of manitoba, winnipeg, manitoba, 2010). 10 j. r. fischer, e. halibozek, & g. green, introduction to security 229-441 (linacre house, jordan hill, oxford, 2008). http://journal.unnes.ac.id/sju/index.php/jils 302 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils financial proposals from cyber criminals to innocent internet users. the increasing rates of cyber crime in nigeria today have become a strong threat to the country’s e-commerce growth and has led to illreputation intentionally and consequently denied some innocent nigerians certain opportunities abroad.11 in the further context, cyberspace has provided a safe haven for internet platform, which has created geometric growth and accelerated windows of opportunities for businesses and the removal of economic barriers hitherto faced by nations of the world. people from diverse areas of human endeavor can now freely access and utilize the advantages offered by internet platform.12 in addition, the internet has brought some positive impact to the world such as facilitation of job search and employment, accessibility to research information for education and businesses, rural integration, enhancement of trade and commerce, sharing of resources and ideas, and enhance communication. 13 considering the limitless advantages of the internet, one can easily subscribe to the fact that it is an important tool for national development in a developing country like nigeria. however, despite the development trend associated with the internet, it has brought about a new wave of crime which is threatening the social order in the society. the internet online services, which are ordinarily supposed to be blessings as they exposes one to a lot of opportunities in various field of life are fast becoming sources of discomfort and worry due to the atrocity being perpetrated through it. cybercrimes cover a wide range of illegal activities on the cyber space by individuals in tertiary institutions in delta state. cyber-crime simply means the use of computers and internet as tools to conduct criminal activity such as financial fraud, identity theft, phishing and copyright violations amongst others. some individuals in nigeria have embraced cyber-crime as a way of life. many have become rich 11 ahmed, supra note 5; e.j. aghatise, cyber-crime definition, computer crime research centre 2006. for comprehensive and comparative reading, please also see kumar, supra note 5; p. pati cybercrime, 2003; planetindia, introduction to cyber crime, 2001. 12 o.r. ehimen, & a. bola, cybercrime in nigeria, 3 business intelligence j. 85, 98-99; f.f. akande, issue in humanities and technology, (integrity publication, ilorin, 2007). 13 m. yar, cybercrime and society, (london, sage publication ltd, 2006). also see young media association, the internet: benefits, danger and strategies. australia young association, 2007. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 303 available online at http://journal.unnes.ac.id/sju/index.php/jils while some others have been caught by the law. 14this new crime is denting and drilling holes in the economy of the nation. for example, in a recent report by the internet crime complaint center which is a partnership between the fbi and america’s national white collar crime center, revealed that nigeria now ranked third among the list of top ten sources of cybercrime in the world.15 also, the central bank of nigeria (cbn) in its banking sector supervision report revealed that the nigeria banking sector lost 7.2 billion naira to internet fraud.16 losing 7.2 billion naira in a developing economy such as ours is not something to be proud about. apart from the destruction cyber-crime does to the economy, it also is leads to the erosion of confidence in genuine nigerian commercial credibility and today many western countries with france taking the lead have moved to deny nigerian businessmen and women who are legitimate the rewards of ecommerce. france today requires web camera verification for most online business transactions from nigeria.17 this study therefore examines the correlates of the nigerian legal system and the challenges of cybercrime management in nigeria with special reference to tertiary institutions in delta state, nigeria. tertiary institutions include universities, polytechnics, colleges of education and colleges of technology. in most tertiary institutions in delta state, nigeria, various form of crimes are being witnessed ranging from examination malpractices, falsification of admission, rape, robbery and stealing, sexual abuse, assault, cultism amongst others. but in recent time cyber-crime, a new form of crime now exists in tertiary institutions in delta state, nigeria. students of tertiary institution now engage in cloning of websites, false representations, internet purchase and other e-commerce kinds of fraud such as credit card fraud. it is for this reason, that this study is conceived to examine legislative drafting and the challenges of cybercrime 14 o. tade, & i. aliyu, social organization of internet fraud among university undergraduates in nigeria, 5 intl j. cyber crim, 860, 860-875 (2011). 15 s. m. abdulhamid, haruna c., & a. abubakar, cybercrimes and the nigeria academic institution networks, 7 the iup journal of information technology 1, 11-12 (2011); internet crime complaint center, internet crime report, 2010. 16 ajewole, supra note 1. 17 o.s. longe & s. c. chiemeke, cyber crime and criminality in nigeria. what roles are internet access points in playing? 6 european journal social sciences 127, 132-139 (2008); kumar, supra note 5. http://journal.unnes.ac.id/sju/index.php/jils 304 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils management in nigeria with special reference to tertiary institutions in delta state, nigeria and to suggest possible solutions to the identified challenges.18 although the internet has been a double-edged sword providing opportunities for individual, tertiary institutions in delta state, nigeria and other organizations, it brings with it an increased information security risk. cybercrime has in recent time become a crucial threat to many tertiary institutions in delta state, nigeria which has necessitated many federal government to enact nigerian cybercrime act 2015 and also put in place coherent procedural measures to tackle cyber-criminals in nigeria; which involve putting effective task forces, there is however the need for federal government to initiate more strategies to curb the menace of cybercrime which threatens the security of businesses, tertiary institutions in delta state, nigeria. nigeria is not the only nation where cybercrimes are being perpetrated. the incident can rightly be said to be on the increase in the country due to lack of security awareness and under reportage respectively. although some undergraduate and post graduates students’ level of knowledge of the internet is observably just for chatting with their friends and may be get information there from, most of them may not be in the position to protect their data or information and computer from malicious, programmers. the contribution of internet to the development of the nation nigeria especially the tertiary institutions in delta state, nigeria has been marred by the evolution of new waves of cybercrime. the internet has also become an environment where the most lucrative and safest crime thrives. internet has become a stubborn mouth sore which causes us a lot of pain and shame because criminally minded individuals in tertiary institutions in delta state and the country at large are stealing and committing atrocity through the aid of the internet online business transactions. the undergraduate and post graduates students in tertiary institutions in delta state, nigeria who are mostly youths in every society is of great importance and concern to that society because they are looked 18 n. ribadu, cybercrime and commercial fraud: a nigerian perspective, a paper presentation at the modern law for global commerce, vienna 9-12 july 2007; kumar, supra note 5, abu, regulations governing higher degree studies, nigeria (abu press limited, nigeria, 2010). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 305 available online at http://journal.unnes.ac.id/sju/index.php/jils upon as the leaders of tomorrow. olaide & adewole observed that a sizeable number of criminals in tertiary institutions in delta state, nigeria fall within the youthful age as earlier stated. the undergraduate and post graduates students in delta state, nigeria at present have discovered different ways of using the internet in doing different types of criminal activities and these age brackets are also found in other tertiary institutions in nigeria.19 concerted attempts to address cybercrime by various governments and international organizations have not been successful owing to the fact that the identities of the perpetrators of this crime have often remained inadequate. a study by zero tolerance indicates that cybercriminals are usually within the age of 18 and 30 years and they indulge in the crime in order to survive and have a taste of good life. noting these observations, there is need to identify more attributes these cyber criminals possess and identify other motivating factors since it have been acknowledged that a good taste of life is a major factor.20 according to vladimir internet is a global network which unites millions of computer. the contribution of internet to the development of the nation has been marred by the evolution of a new wave of crime.21 the internet has also become an environment where the most lucrative and safest crimes thrive. there are indications that cyber-crime is rising. for example, a 2005 yougov poll of uk internet users found that 1 in 20 had lost money in online scams. also a 2001 survey revealed that 52 per cent of companies interviewed said internet fraud posed real problems for them.22 these are clear indications that cyber-crime is on the increase and as such, it is beginning to gain recognition at the global level and there is dearth of study in the area of this burgeoning criminal act in nigeria. the internet create unlimited opportunities for commercial, social and educational activities, however, it has introduced its own peculiar risks that pose danger to the economy. this danger could affect many sectors of the society and put the development of the country into peril. some of 19 m. olaide, & r. adewole, cyber crime embarrassing for victims, 2004. 20 zero tolerance, the portrait of a yahoo boy, 1 economic and financial crime commission 36, 38-39 (2006). 21 g. vladimir, international cooperation in fighting cyber crime, 2005; d.s. wall, d.s, crime and the internet, london routledge publisher, 2005) [hereinafter as wall, 2005]. 22 d. s. wall, d.s, cybercrime: the transformation of crime in the information age, (polity press, cambridge, uk, 2007) [ hereinafter as wall, 2008]. http://journal.unnes.ac.id/sju/index.php/jils 306 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils these possible adverse effects could include the destruction of the country’s image both at home and abroad, insecurity of both life and properties, fear of doing business with nigerian’s citizen, economic loss of spending substantial amount of money on the prevention and control of cybercrime amongst others.23 for example, a survey on cyber-crime conducted in 2001 by confederation of british industry (cbi) and other parties including price water house coopers, states that cyber-crime could hinder the growth of e-business because it makes people to be.24 in essence, what other menace does cyber-crime poses to the society. consequently, many countries have intensified efforts in curbing the excesses of cyber-criminals. nevertheless, efforts have been made by the federal government of nigeria to curb the menace of the crime too. for instance, according to awe,25 the government of president olusegun obansanjo in 2003 set up a working group known as the nigeria cyber crime working group (ncwg) to address this phenomenon since the loss suffered by both consumers and investors creates serious credibility and image problem to the country. similarly, according to abdulhamid et al, in nigeria, a bill title “cyber security and critical infrastructure bill” is presently been prepared to deal specifically with the menace of cybercrime.26 the economic and other financial crime commission (efcc) and the nigerian police force (npf) have also played vital roles in curbing this menace.27 to support their efforts, microsoft and other internet related organizations like paradigm initiative nigeria, background check international (bci) and the internet safety, security and privacy initiative for nigeria (isspin) have also assisted to curb the maladies (awe, 2009).28 in spite of all these efforts, cyber-crime in tertiary institutions in delta state, nigeria is still on the increase. the situation raises a question on the 23 a.b. dambazau, m.m. jumare, & a. m. yakubu, a.m, issues in crime prevention and control in nigeria, (baraka press and publishers ltd kaduna, nigeria, 1996). 24 r.g. broadhurst & and p.n. grabosky, cyber-crime: the challenge in asia 1581, (hong kong university press, hong kong, 2005). 25 j. awe, fighting cybercrime in nigeria, 2009. 26 abdulhamid, haruna, & abubakar, supra note 15, at. 11; s. mcquade, s., the encyclopedia of cybercrime, (green wood press, westpoint connecticut, london, 2009). 27 e.f. ogbunwezeh, e.f., efcc and cybercrime the true lesson, 2006. 28 awe, supra note 5. see also j. umar-ajijola, microsoft combats cybercrime in nigeria, 2010a. j. umar-ajijola, fighting cybercrime in nigeria, 2010b. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 307 available online at http://journal.unnes.ac.id/sju/index.php/jils place of the law in curbing cybercrime in nigeria, the challenges of cybercrime management in nigeria, the type of cyber-crime that is on the increase in tertiary institutions in delta state, nigeria and remedy to solve the menace. consequently, the research work was designed to provide answers to the research questions raised and also to suggest solutions to the challenges of cybercrime management in nigeria. method i. objectives of the study the main aim of this study is to examine the law and crime management in nigeria. the specific objectives of this study therefore are: 1. to determine the provisions of the nigerian cybercrime act 2015 2. to determine the causes of cyber crime in nigeria 3. to determine the types of cyber crime often committed by individuals in tertiary institutions in delta state, nigeria 4. to determine the consequences of cyber-crime in nigeria 5. to determine the relevance of nigerian cybercrime act 2015? 6. to determine the challenges of cybercrime management in nigeria 7. to suggest appropriate solutions to the challenges of cybercrime management in nigeria. ii. research hypotheses this study in the quest of finding solution to the menace of cybercrime in nigeria, seek to test the following research hypotheses: 1) h0: the law cannot provide solution to cyber crime management in nigeria. h1: the law can provide solution to cyber crime management in nigeria. 2) h0: poverty is not a factor responsible for cybercrime in nigeria. h1: poverty is a factor responsible for cybercrime in nigeria. 3) h0: the law cannot promote intellectual property and ensure privacy rights. http://journal.unnes.ac.id/sju/index.php/jils 308 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils h1: the law can promote intellectual property and ensure privacy rights. 4) ho: the law does not provide mechanism for the enforcement of the rights, duties and laws that bother on cybercrimes. h1: the law does provide mechanism for the enforcement of the rights, duties and laws that bother on cybercrimes. 5) ho: cybercrime does not consists of various conducts (communicating of restricted information; the unauthorized accessing of information from financial institutions, the nigerian government etc) relating to the use of computers in criminal behaviour. h1: cybercrime does consists of various conducts (communicating of restricted information; the unauthorized accessing of information from financial institutions, the nigerian government etc) relating to the use of computers in criminal behaviour. 6) ho: there is no existing law to adequately address cybercrimes (hacking, theft of intellectual property and computer related fraud etc). h1: there are existing law to adequately address cybercrimes (hacking, theft of intellectual property and computer related fraud etc). 7) ho: cybercrimes cannot lead to loss of revenue to financial institutions and multinational companies. h1: cybercrimes can lead to loss of revenue to financial institutions and multinational companies. iii. research questions the following research questions will serve as guide to the study: 1. what are the laws guiding cybercrimes in nigerian? 2. what are the causes of cybercrime in nigeria? 3. what are the types of cyber crime often committed by individuals in tertiary institutions in delta state, nigeria? 4. what are the consequences of cyber-crime in nigeria? 5. what are the relevance of nigerian cybercrime act 2015? 6. what are the challenges of cybercrime management in nigeria? http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 309 available online at http://journal.unnes.ac.id/sju/index.php/jils 7. what are the solutions to the challenges of cybercrime management in nigeria? iv. research design the design of this study is the correlational survey design. correlational survey research design is used when the focus of a study is to find out whether or not there is a relationship between two or more variables. in this study the researcher is interested examining the law and cyber crime management in nigeria with special reference to some selected tertiary institutions in delta state, nigeria. therefore, this design is considered appropriate because the data that will be collected will be used to describe the direction and the magnitude of the relationship between the variables with respect to the population of the study.29 a. population of the study the target population in this research will comprise of all the 208 staff of all the forty (40) online businesses centers and cyber cafes in all the 28 tertiary institutions in delta state, nigeria. the following are the list of tertiary institutions in delta state, nigeria: 1. federal university of petroleum resources, effurun 29 i.i. akpabio, & f.s. ebong, research methodology and statistics in health and behavioural sciences 91, (unical printing press, calabar, nigeria, 2009); l. erinosho, i. n. obasi, & a. maduekwe, interdisciplinary methodologies in the social sciences (auscon fireseed and co ltd, abuja, nigeria, 2009); j.e. gyong, basic component of a research project in sociology, a paper presentation at the in-house training, department of sociology, (abu, nigeria, 2011). this research also uses multidisciplinary perspective between law, security studies, social, and sociology. please also see m. haralanbos, m. holborn, & r. heald, sociology: theme and perspectives, (harper collins publishers, london, uk, 2008); national population commission, 2006 population and housing census of the federal republic of nigeria (national population commission, 2006). a.o. olayiwola, procedures in educational research 106, (hanijam publications, ahmadu bello way, kaduna, nigeria, 2007); e.c. osuala, introduction to methodology, (african fep publishers limited, nigeria, 1992). http://journal.unnes.ac.id/sju/index.php/jils https://en.wikipedia.org/wiki/federal_university_of_petroleum_resources_effurun 310 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. delta state university (abraka campus, oleh campus, asaba campus) 3. delta state polytechnic, ogwashi-uku 4. delta state polytechnic, otefe-oghara 5. delta state polytechnic, ozoro 6. the film and broadcast academy, ozoro 7. college of education, agbor 8. college of education, warri 9. federal college of education technical, asaba 10. college of physical education, mosogar 11. school of health technology, ughelli 12. petroleum training institute, effurun 13. western delta university, oghara 14. novena university, ogume-amai 15. national open university of nigeria, asaba study center, asaba 16. national open university of nigeria, emevor study center, emevor 17. delta state school of marine technology, burutu 18. nigerian maritime university, okerenkoko, warri 19. conarina school of maritime & transport technology, oria-abraka 20. university of information and communication technology, agbor 21. state school of midwifery, asaba 22. school of nursing, agbor 23. school of nursing, warri 24. baptist school of nursing, eku 25. edwin clark university, kiagbodo 26. eagle heights university, omadino, warri 27. nigerian naval school, sapele 28. nigerian navy maritime university, ibusa b. sample size the sample for the study shall consist of two hundred (200) staff of 20 online businesses centers and cyber cafes out of two hundred and eight (208) online business staff drawn from a total of forty the (40) online businesses centers and cyber cafes in tertiary institutions in delta state, nigeria. the following were the 10 tertiary institutions where 20 cyber http://journal.unnes.ac.id/sju/index.php/jils https://en.wikipedia.org/wiki/delta_state_university,_abraka https://en.wikipedia.org/wiki/agbor https://en.wikipedia.org/wiki/warri https://en.wikipedia.org/wiki/asaba,_delta https://en.wikipedia.org/wiki/ughelli https://en.wikipedia.org/wiki/petroleum_training_institute https://en.wikipedia.org/wiki/effurun https://en.wikipedia.org/wiki/western_delta_university https://en.wikipedia.org/wiki/oghara https://en.wikipedia.org/wiki/asaba_city https://en.wikipedia.org/wiki/warri https://en.wikipedia.org/wiki/abraka https://en.wikipedia.org/wiki/agbor https://en.wikipedia.org/wiki/asaba,_delta https://en.wikipedia.org/wiki/agbor https://en.wikipedia.org/wiki/warri https://en.wikipedia.org/wiki/eku https://en.wikipedia.org/wiki/sapele https://en.wikipedia.org/wiki/ibusa jils (journal of indonesian legal studies) volume 5(2) 2020 311 available online at http://journal.unnes.ac.id/sju/index.php/jils cafes out of forty (40) online businesses centers and cyber cafes (with 200 staff) were selected and used as sample: 1. federal university of petroleum resources, effurun 2. delta state polytechnic, otefe-oghara 3. college of education, agbor 4. college of education, warri 5. federal college of education technical, asaba 6. college of physical education, mosogar 7. school of health technology, ughelli 8. petroleum training institute, effurun 9. western delta university, oghara 10. novena university, ogume-amai c. sample technique two hundred (200) online business staff out of two hundred and five (208) of them will be selected from 20 online business centers / cyber cafes in tertiary institutions in delta state, nigeria using simple random sampling technique. this represents 76% of the population of online business staff in tertiary institutions in delta state, nigeria. d. instruments the instrument that will be used for this study is titled: “the law and the cyber crime management in nigeria survey scale” (tlccminnss). the questionnaire was adopted from bethran and part of it was adapted. the instrument will be made up made of 30 items split into six sections a, b, c, d, e and f; each section is made up of 6 items. section a was used to measure“ legislative drafting and cyber crime” section b was used to measure “relationship between law enforcement and cyber crimes”, section c was used to measure “attitudes and cyber crimes”, section d was used to measure “ethics and cyber crimes”, section e will be used to measure “challenges of cyber crime management” and section e will be used to measure “solutions to the identified challenges” the research instrument will be based on four likert scale: positive worded items will be scored thus: “strongly agree” – 4 points, “agree”3 points, “disagree” 2 points, and http://journal.unnes.ac.id/sju/index.php/jils https://en.wikipedia.org/wiki/federal_university_of_petroleum_resources_effurun https://en.wikipedia.org/wiki/agbor https://en.wikipedia.org/wiki/warri https://en.wikipedia.org/wiki/asaba,_delta https://en.wikipedia.org/wiki/ughelli https://en.wikipedia.org/wiki/petroleum_training_institute https://en.wikipedia.org/wiki/effurun https://en.wikipedia.org/wiki/western_delta_university https://en.wikipedia.org/wiki/oghara 312 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils strongly disagree -1 point while negative worded items will be scored thus “strongly agree” 1 point, “agree” 2 points, “disagree” 3 points and “strongly disagree” 4 points. e. justification of the statistical test or technique the following are the reasons for using pearson product moment correlation statistics for the test of hypothesis: 1) pearson product moment correlation statistics not only indicates the presence or absence of correlation between any two variables but also, determines the exact extent, or degree to which they are correlated. 2) under this method, the researcher will also ascertain the direction of the correlation like whether the correlation between the two variables is positive, or negative. 3) pearson product moment correlation statistics enables the researcher to estimate the value of a dependent variable with reference to a particular value of an independent variable through regression equations. 4) this method has a lot of algebraic properties for which the calculation of co-efficient of correlation, and a host of other related factors viz. coefficient of determination, are made easy. 5) fisher-z statistics is employed whenever it can be argued that a test statistic follows a normal distribution under the null hypothesis of interest. many non-parametric test statistics, such as u statistics, are approximately normal for large enough sample sizes, and hence are often performed as fisher-z statistics tests. f. data analysis hypotheses 1 to 3 was tested using pearson product moment correlation statistics and fisher-z statistics. all hypotheses will be tested at a 0.05 alpha level of significance. http://journal.unnes.ac.id/sju/index.php/jils https://en.wikipedia.org/wiki/non-parametric_statistics https://en.wikipedia.org/wiki/u_statistic jils (journal of indonesian legal studies) volume 5(2) 2020 313 available online at http://journal.unnes.ac.id/sju/index.php/jils data presentation and analysis of findings i. presentation of data table 1 distribution and return of questionnaire number of questionnaire administered on sample subjects 208 number of questionnaire that were duly completed and returned questionnaire 200 the percentage of questionnaire returned 100% source: fieldwork, 2018 table 1 shows that out of a total of 208 questionnaires administered on 200 sample elements, comprising of online staff, 200 copies were duly completed and returned questionnaire. this shows a response rate of 94%, implying a very good response rate for the study and considered adequate for comprehensive analysis and generalization of research findings. table 2 distribution of respondents by level of education level of education of the respondents frequency % non-graduate 114 57 graduate 86 43 total 200 100 source: fieldwork, 2018 http://journal.unnes.ac.id/sju/index.php/jils 314 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils the graph above shows that 114 representing 57% of the respondents are on line staff who are non-graduates while 86 representing 43% of the staff of the cyber cafes or on line staff who are graduates; this demographic data reveals that the respondents are more of non-graduates. table 3 distribution of respondents by age age of the respondents total frequency % 26 – 35 114 57 36 – 45 60 30 46 – 55 20 10 56 and above 6 3 total 200 100 source: fieldwork, 2018 0 20 40 60 80 100 120 ngraduate graduate freq % http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 315 available online at http://journal.unnes.ac.id/sju/index.php/jils the age distribution of the respondents as revealed in the questionnaire indicates age ranges from 26 – 35; 36 – 45; 46 – 55 and 56 and above respectively. since majority of the respondents are within the age bracket of 26-35 years and 36 – 45 years, this denotes a productive workforce of on line staff in terms of age. ii. analysis of data a. research question one table 4 the laws guiding cybercrime in nigeria no items sa % a % sd % d % total 1. economic and financial crimes commission (establishment) act 5 2.5% 65 32.5% 127 63.5% 127 63.5% 200 2. advanced fee fraud and other fraud related offences act 140 70% 40 20% 10 5% 10 5% 200 3. nigerian criminal code 163 81.5% 32 16% 2 1% 3 1.5% 200 4. money laundering 105 52.5% 73 36.5% 10 5% 12 6% 200 0 10 20 30 40 50 60 26 – 35 36 – 45 46 – 55 56 and above frequency frequency http://journal.unnes.ac.id/sju/index.php/jils 316 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils prohibition act 5. the nigerian evidence act and the cybercrime act 2015 40 20% 20 10% 35 17.5% 105 52.5% 200 source: field survey by research, 2018. table 4. above shows that economic and financial crimes commission (establishment) act, advanced fee fraud and other fraud related offences act, nigerian criminal code, money laundering prohibition act and the nigerian evidence act and the cybercrime act 2015 are the laws guiding cybercrime in nigeria. b. research question two: what are the causes of cyber crime in nigeria? table 5 the causes of cyber crime in nigeria no items sa % a % sd % d % total 1. poverty 154 77% 36 18% 3 1.5% 7 3.5% 200 2. defective socialization 140 70% 40 20% 10 5% 10 5% 200 3. unemployment 163 81.5% 32 16% 2 1% 3 1.5% 200 4. weak laws/absent of existing law on cyber-crime 105 52.5% 73 36.5% 10 5% 12 6% 200 5. easy accessibility to the internet 40 20% 20 10% 35 17.5% 105 52.5% 200 source: field survey by research, 2018. table 5shows that majority of the respondents agreed 163 (81.5%) that unemployment is the major cause of cyber crime in nigeria. c. research question three table 6 what are the types of cyber crime often committed by individuals in tertiary institutions in delta state, nigeria? no. items sa % a % sd % d % total 1. cyberstalking 105 52.5% 73 36.5% 10 5% 12 6% 200 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 317 available online at http://journal.unnes.ac.id/sju/index.php/jils source: field survey by research, 2018. the above table 6 showed that cyber defamation is the major type of cyber crime often committed by individuals in tertiary institutions in delta state, nigeria. table 7 what are the consequences of cyber-crime in nigeria? source: field survey by research, 2018. the above table showed that the major consequence of cyber-crime is that it is inimical to progress and development of the country, with 163 (81.5%) agreeing to it. 2. malicious program/virus dissemination 40 20% 20 10% 35 17.5% 105 52.5% 200 3. cyber/identity theft 88 44% 45 22.5% 30 15% 37 18.5% 200 4. cyber defamation 180 90% 10 5% 6 3% 4 2% 200 5. cyber identity theft 170 85% 25 12.5% 2 1% 3 1.5% 200 no. items sa % a % sd % d % total 1. loss of revenue 40 20% 20 10% 35 17.5% 105 52.5% 200 2. loss of employment 140 70% 40 20% 10 5% 10 5% 200 3. it is inimical to progress and development of the country 163 81.5% 32 16% 2 1% 3 1.5% 200 4. tarnishing the country’s reputation internationally 105 52.5% 73 36.5% 10 5% 12 6% 200 5. loss of life 40 20% 20 10% 35 17.5% 105 52.5% 200 http://journal.unnes.ac.id/sju/index.php/jils 318 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils table 8 what are the relevance of nigerian cybercrime act 2015? no items sa % a % sd % d % total 1. provide an effective and unified legal, regulatory and institutional framework for the prohibition of cyber crime 140 70% 40 20% 10 5% 10 5% 200 2. provide an effective and unified legal, regulatory and institutional framework for the detection of cyber crime 163 81.5% 32 16% 2 1% 3 1.5% 200 3. provide an effective and unified legal, regulatory and institutional framework for prosecution of cyber crime 105 52.5% 73 36.5% 10 5% 12 6% 200 4. provide an effective and unified legal, regulatory and institutional framework for punishment of cybercrimes in nigeria 40 20% 20 10% 35 17.5% 105 52.5% 200 5. ensure the protection of critical national information infrastructure 88 44% 45 22.5% 30 15% 37 18.5% 200 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 319 available online at http://journal.unnes.ac.id/sju/index.php/jils and the protection of computer systems source: field survey, 2018. the table above shows majority of the respondent strongly agreed the major relevance of nigerian cybercrime act 2015 is that it helps to provide an effective and unified legal, regulatory and institutional framework for the detection of cybercrime. d. research question six table 9 what are the challenges of cybercrime management in nigeria? no items sa % a % sd % d % total 1. poor security network in nigeria 163 81.5% 32 16% 2 1% 3 1.5% 200 2. poor funding of the police, efcc and other relevant agencies 105 52.5% 73 36.5% 10 5% 12 6% 200 3. corruption among the police, efcc and other relevant agencies 40 20% 20 10% 35 17.5% 105 52.5% 200 4. high level of illiteracy in nigeria 88 44% 45 22.5% 30 15% 37 18.5% 200 5. poverty of the mind 180 90% 10 5% 6 3% 4 2% 200 source: field survey 2018/2019. in table above shows majority of the respondent strongly agreed the major challenge of cybercrime management in nigeria is poor funding of the police, efcc and other relevant agencies. e. research question seven table 10 what are the solutions to the challenges of cyber crime management in nigeria?. no items sa % a % sd % d % total 1. redefine our ethical standards. 8. 170 85% 25 12.5% 2 1% 3 2. arrest and 163 81.5% 32 16% 2 1% 3 1.5% 200 http://journal.unnes.ac.id/sju/index.php/jils 320 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils source: field survey, 2018. in table above shows majority of the respondent strongly agreed the best solutions to the challenges of cybercrime management in nigeria is arrest and immediate prosecution of cyber-criminals. iii. test of hypotheses hypothesis 1: the law cannot provide solution to cyber crime management in nigeria. table 11 fishers’ z of the law and cyber crime management in nigeria sex n r zr z-cal. z-table male 85 .187 .189 3.215 1.96 female 112 .217 .221 immediate prosecution of cybercriminals 3. introduce cyber-crime as a course in the curriculum of secondary school students. 105 52.5% 73 36.5% 10 5% 12 6% 200 4. enlighten young ones about the consequences of such actions under law. 40 20% 20 10% 35 17.5% 105 52.5% 200 5. report to the police or other concerned authorities anyone we might suspect of engaging in cybercrime. 88 44% 45 22.5% 30 15% 37 18.5% 200 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 321 available online at http://journal.unnes.ac.id/sju/index.php/jils α = .05 table 11 shows a calculated z value of 3.215 and a table value of 1.96, testing at an alpha level of .05, the calculated value falls within the rejection region, so, the null hypothesis which states that “the law cannot provide solution to cyber crime management in nigeria” is rejected. meaning the law cannot provide solution to cyber crime management in nigeria. hypothesis 2: h0: poverty is not a factor responsible for cyber crime in nigeria. table12 fishers’ z of poverty is not a factor responsible for cyber crime in nigeria.= sex n r zr zcal z-table male 85 .161 .162 2.510 1.96 female 112 .168 .170 α = .05 table 12 shows a calculated z value of 2.510 and a table value of 1.96, testing at an alpha level of .05, the calculated value falls within the rejection region, so, the null hypothesis which states that “poverty is not a factor responsible for cybercrime in nigeria” is rejected. meaning poverty is not a factor responsible for cybercrime in nigeria. hypothesis 3: h0: the law cannot promote intellectual property and ensure privacy rights. table 13 fishers’ z of the law and promotion of intellectual property and ensuring of privacy rights sex n r zr zcal z-table male 85 .159 .160 2.078 1.96 female 112 .170 .172 α = .05 table 13 shows a calculated z value of 2.078 and a table value of 1.96, testing at an alpha level of .05, the calculated value falls within the rejection region, so, the null hypothesis which states that “the law cannot promote intellectual property and ensure privacy rights” is rejected. meaning the law can promote intellectual property and ensure privacy rights. http://journal.unnes.ac.id/sju/index.php/jils 322 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils hypothesis 4: ho: the law does not provide mechanism for the enforcement of the rights, duties and laws that bother on cybercrimes. table 14 fishers’ z of the law and provision of mechanism for the enforcement of the rights, duties and laws that bother on cyber crimes age n r zr z z-table under 20years 110 .211 .214 2.036 1.96 21years and above 90 .216 .219 α = .05 table 14 shows a calculated z value of 2.036 and a table value of 1.96, testing at an alpha level of .05, the calculated value falls within the rejection region, so, the null hypothesis which states that “the law does not provide mechanism for the enforcement of the rights, duties and laws that bother on cybercrimes” is rejected. meaning the law does provide mechanism for the enforcement of the rights, duties and laws that bother on cybercrimes. hypothesis 5: ho: cyber crime does not consists of various conducts relating to the use of computers in criminal behaviour. table 15 fishers’ z of cybercrime consisting of computers in criminal behaviour age n r zr z-cal z-table under 20years 110 .188 .190 2.328 1.96 21years and above 90 .142 .143 α = .05 table 15 shows a calculated z-cal value of 2.328 and a table value of 1.96, testing at an alpha level of .05, the calculated value falls within the rejection region, so, the null hypothesis which states that “cybercrime does not consists of various conducts (communicating of restricted information; the unauthorized accessing of information from financial institutions, the nigerian government etc) relating to the use of computers in criminal http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 323 available online at http://journal.unnes.ac.id/sju/index.php/jils behaviour.” is rejected. meaning cybercrime does consists of various conducts (communicating of restricted information; the unauthorized accessing of information from financial institutions, the nigerian government etc) relating to the use of computers in criminal behaviour. hypothesis 6: ho: there is no existing law to adequately address cybercrimes (hacking, theft of intellectual property and computer related fraud etc). table 16 fishers’ z of no existing law that adequately addresses cybercrimes (hacking, theft of intellectual property and computer related fraud etc). age n r zr z z-table under 20years 110 .142 .143 2.515 1.96 21years and above 90 .214 .217 α = .05 table 16 shows a calculated z value of 2.515 and a table value of 1.96, testing at an alpha level of .05, the calculated value falls within the rejection region, so, the null hypothesis which states that “there is no existing law to adequately address cybercrimes (hacking, theft of intellectual property and computer related fraud etc)” is rejected. meaning there are existing law to adequately address cybercrimes (hacking, theft of intellectual property and computer related fraud etc). hypothesis 7: h0: cybercrimes cannot lead to loss of revenue to financial institutions and multinational companies. table 17 fishers’ z of cyber crimes and loss of revenue to financial institutions and multinational companies sex n r zr zcal z-table male 85 .159 .160 2.078 1.96 female 112 .170 .172 α = .05 http://journal.unnes.ac.id/sju/index.php/jils 324 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils table 17 shows a calculated z value of 2.078 and a table value of 1.96, testing at an alpha level of .05, the calculated value falls within the rejection region, so, the null hypothesis which states that “cybercrimes cannot lead to loss of revenue to financial institutions and multinational companies.” is rejected. meaning cybercrimes can lead to loss of revenue to financial institutions and multinational companies. iv. discussions of findings this section discusses the key findings from the objectives of the study in relation to other scholar’s findings. as to the pattern and consequences of cyber-crime in tertiary institution in nigeria, the study revealed that youths in tertiary institutions and graduates seeking for employment are mostly the perpetrators of this criminal activity. this result is found to have similarity with past studies. for instance, the report of efcc (2012), on cyber-criminals caught and penalized shows a large number of the involvement of students and graduates as the main perpetrator of the crime. for example, a 25-year-old student of the university of ilorin, imonina kingsley, was sentenced on four-count of impersonation, possession of fraudulent documents and attempt to obtain money by false pretences and was sentenced 20 years jail term. he was said to have used the false identity of one mr. thomas duke, with the email address given as thomasduke4luv@yahoo.com to send fraudulent mails with intent to defraud unsuspecting victim.30 also, abayomi lawal adekunle nurudeen, a final-year student of survey and geo-informatics engineering at the university of lagos, sentenced to 19 years jail term for obtaining $47,900 from pee loo rosalind summer, an australian lady. similarly, ferdinand iheasirim, a 1993 graduate of accountancy of abia state university had claimed to rev robert mcardle, an australian and that he was ben agwu, a security adviser to nigeria’s president. he was sentenced to 10 years imprisonment. all this are report of efcc (2012).31 the research has shown that hacking, software piracy, credit card fraud, phishing, pin fraud and the use of social network are the commonest 30 d. thomas, d, cybercrime in nigeria, 2011 31 ogbunwezeh, supra note 27. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 325 available online at http://journal.unnes.ac.id/sju/index.php/jils types of cyber-crime being perpetrated in tertiary institutions in nigeria. this statement corroborate with past studies on the types of cyber-crime common in nigeria. for instance, olugbodi states that the most prevalent forms of cyber-crime in nigeria are website cloning (phishing), financial fraud, identity theft, credit card fraud, cyber-theft, cyber-harassment, fraudulent electronic mails, software piracy and virus / worms / trojans.32 in addition, ribadu stated that the prominent forms of cybercrime in nigeria are cloning of websites, false representations, internet purchase and other e-commerce kinds of fraud.33 findings from the study showed that youths who are involved in cyber-crime are within the ages of 18-30years who are motivated by the quest for quick luxurious comfort, greed, reputation, vengeance and low chances of being caught. the result of the finding agrees with past studies on the ages of cyber-criminals and motivating factor. for instance, a study by zero tolerance, indicates that cyber-criminals are usually within the age category of 18 and 30 years and they indulge in the crime in order to survive and have a taste of good life. the study further identified the sexes that are involved in cyber-crime. the study showed that males are mostly involved in cyber-crime.34 this finding can be corroborated with that of olaide and adewole which states that cyber-crimes are male dominated, however, and that female are tender-hearted, feared being caught in evil act, humble, submissive, gentle, emotional and quiet while men are strong and daring. 35 the theoretical deduction showed that an individual becomes a cyber-criminal if the following three conditions are met: if the individual had learned the requisite skills and techniques for committing the crime, if the individual had learned excess of definitions favourable to crime over definition unfavourable to crime and finally, if the individual had the objective opportunity to carry out the crime. in addition to the theory used, other push factors such as economic, socio-political and cognitive factors were identified which could lead an individual to be involved in cybercrime. findings from the studies had shown that those individuals involved in cyber-crime associate with other cyber-criminals either through chat 32 k. olugbodi, fighting cyber crime in nigeria, 2010. 33 ribadu, supra note 18. 34 zero tolerance, supra note 20. 35 olaide & adewole, supra note 19. http://journal.unnes.ac.id/sju/index.php/jils 326 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils channels (communication) or physically (interaction) in order to perfect their skills and to keep abreast of new techniques and potential targets. the study also revealed, that through these means, the individual develop a rationalization for cyber-crime. this fact tallies with assumption 1 4 of differential association theory. that state; criminal behavior is learned, criminal behavior is learned in interaction with other persons in a process of communication, the principal part of the learning of criminal behavior occurs within intimate personal groups, and when criminal behavior is learned.36 in addition, cyber-criminals have come to realized that corruption thrives in the society and it is uncheck by law enforcement agencies and the law enforcement agencies have not also done much to arrest and prosecute these cyber-criminal due to lack of legislature on cyber-crime, this gives them the opportunity to operate freely without fear of being arrested. this fact also tallies with fifth and sixth assumption of differential association theory, states that an individual will be pushed into deviant behavior depending on their view of the legal code as being favorable or unfavorable. a person becomes delinquent because of an excess of definitions favorable to violation of law over definitions unfavorable to violation of the law. according to the seventh factor of differential association, the finding revealed that the more time an individual spend with cyber-criminals, the more the increase in the frequency that they engage in deviant behavior.37 as to the causes of cyber-crime in nigeria, the findings showed that unemployment, corruption, poverty, peer group influence, easy accessibility to the internet and weak laws are the causes of cyber-crime in the study area. other studies also agreed with the findings, for instance okoro, identified the following as the causes of cyber-crime in nigeria; unemployment, negative role models, lack of adequate policing facilities and knowledge of cyber crime and social gratification.38 similarly, awe stated that widespread of corruption, harsh economic climate, high unemployment, disregard for the rule of law and lack of transparency and 36 r.l. matsueda, differential association theory (seattle, wa, university of washington, 2010). 37 id.., at. 117-119; see also mcquade, supra note 26. 38 s. arase, & a. obaedo, policing nigeria in the 21st century 298-302 (spectrum book, ibadan, nigeria, 2009). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 327 available online at http://journal.unnes.ac.id/sju/index.php/jils accountability in governance are the main causes of cyber-crime in nigeria.39 regarding the negative consequences cyber-crime has on the society, it was discovered that such include loss of life, tarnishing the country’s reputation internationally, loss of revenue and employment, denial of innocent nigerians certain opportunity abroad. similarly, past studies also agreed with this findings for example, ringwelski listed the consequences cyber-crime has on the economy to include loss of revenue, wasted time, damaged reputation and reduce productivity.40 the study adopted differential association theory which provided the relevant perspective in the study through its nine assumptions. it helped to explain why an individual becomes a cyber-criminal. v. interpretation of findings the findings of the study revealed that: 1) the law can provide solution to cyber crime management in nigeria. 2) poverty is a factor responsible for cybercrime in nigeria. 3) the law can promote intellectual property and ensure privacy rights. 4) the law provides mechanism for the enforcement of the rights, duties and laws that bother on cybercrimes. 5) cybercrime consists of various conducts (communicating of restricted information; the unauthorized accessing of information from financial institutions, the nigerian government etc) relating to the use of computers in criminal behaviour. 6) there are existing laws that adequately address cybercrimes (hacking, theft of intellectual property and computer related fraud etc). 7) cyber crimes cannot lead to loss of revenue to financial institutions and multinational companies. 39 awe, supra note 25; b.h. schell & c. martin, cybercrime: a reference handbook 4-5, (abc-clio inc, santa barbara, california, 2004). d.l. shinder, scene of the cybercrime: computer forensics handbook, (syngress publishing inc, us, 2002). 40 m. ringwelski, m., effects of cyber crime, 2008. http://journal.unnes.ac.id/sju/index.php/jils 328 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils vi. summary this aspect of the research work is designed to present the summary of the findings of the research, conclusions as well as recommendations. this study investigated examined the law and cybercrime management in nigeria with special reference to some selected tertiary institutions in delta state, nigeria. in order to address the problem of this study, seven research questions were raised and seven research hypotheses were formulated and tested at .05 level of significance. a correlation approach of survey research design was adopted in this study. the target population in this research will comprise of all the 208 staff of all the forty (40) online businesses canters and cyber cafes in all the 28 tertiary institutions in delta state, nigeria. the sample for the study consist of two hundred (200) staff of 20 online businesses centers and cyber cafes out of two hundred and eight (208) online business staff drawn from a total of forty the (40) online businesses centers and cyber cafes in tertiary institutions in delta state, nigeria. two hundred (200) online business staff out of two hundred and five (208) of them will be selected from 20 online business centers / cyber cafes in tertiary institutions in delta state, nigeria using simple random sampling technique. this represents 76% of the population of online business staff in tertiary institutions in delta state, nigeria. the instrument that will be used for this study is titled: “the law and the cyber crime management in nigeria survey scale” (tlccminnss). the questionnaire will be adopted from bethran (2017) and part of it will be adapted. the instrument will be made up made of 35 items split into seven sections a, b, c, d, e and f; each section is made up of 5 items. hypotheses were tested using pearson product moment correlation statistics and fisher-z statistics. all hypotheses were tested at a 0.05 alpha level of significance. conclusion in view of the outcome of this study, the researcher concluded that the law can provide solution to cyber crime management in nigeria. poverty is a factor responsible for cyber crime in nigeria. the law can promote intellectual property and ensure privacy rights. lack of national framework and infrastructure for such, the obvious lack of cyber law and cyber http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 329 available online at http://journal.unnes.ac.id/sju/index.php/jils policing in protection and management of electronic payment fraud nigeria will continue to promote the activities of nigerian and other cybercrimes. therefore, no single law enforcescybercriminals. more so, it was concluded that thus, absence of laws (legislation) to crime will take place. in relation to nigeria, the theory is address online criminality makes it impossible to prorelevant because cybercrime activities have more to do secure offenders with the ineffectiveness of indirect guardianship; as such, the absence of a national internet gateway for nigeria a motivation for such crime to take place. the remarkable development in human history through computer technology has no doubt brought about transformation in all aspects of life, especially in communication and information technology. nevertheless, the embracement of the internet has come with a lot of mixed feelings despite its numerous advantages to the people. cyber-crime is the use of computer/internet as an instrument to further illegal ends such as committing hacking, credit card fraud, phishing, pornography, software piracy and theft of intellectual property, stealing identities, unauthorized access, cloning of website amongst others. it can be inferred from the findings that in nigeria, people are valued in terms of what they possess and command economically. conversely, those without economic success are undervalued and the pressure to achieve success is intensified despite the harsh economic condition such as unemployment amongst others. this necessitated the ability of individuals to devise survival strategies and attain economic success by indulging in cyber-crime. however, the increasing rates of cybercrime in the society has become a strong threat to nigeria’s e-commerce growth and has led to ill-reputation internationally and consequently denied some innocent nigerians certain opportunities abroad. the perpetrators of cyber-crime are not far-fetched; they are our brothers, friends, colleague, distant relatives and neighbours who can be tamed under appropriate circumstances with the right and positive communication, orientation, education and empowerment. recommendations the recommendations for this research are proffered based on the major findings on the study. this study recommend that youths should be empowered through the creation of jobs. the study has identified youths http://journal.unnes.ac.id/sju/index.php/jils 330 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils within the ages of 20-30 years to be the most frequent perpetrators of cyber-crime and in addition, the study has also discovered that these youths are either misguided or misdirected by peers, celebration of unknown wealth amongst others. the study therefore recommends that the young ones should be enlightenment on the consequences of cybercrime. government should continue to cooperate with it industries to develop adequate strategy to fight cyber-crime. there should be zero tolerance to corruption at all levels. cyber-criminals arrested should be prosecuted immediately to deter a would-be-offender. the findings showed that cyber-criminals live in the society, as such; prevention of cyber-crime requires the co-operation of all the citizens and not just the law enforcement agencies. it is therefore, recommended that everyone should watch and report to law enforcement agencies anyone who indulges in cyber-crime. ethical values should be redefined in nigeria. the study shows that youths involved in cyber-crime are either in tertiary institutions or have graduated from tertiary institutions; the study therefore, recommends that curriculum which will include courses on cyber-crime, cyber-management and its prevention should be introduced at both tertiary and secondary schools to take care of the present social changes. references abdulhamid, s.m, haruna, c. and abubakar, a. 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(2006). cybercrime and society. london: sage publication ltd. young media association (2007). the internet: benefits, danger, and strategies. australia: australia young association. zero tolerance (2006), the portrait of a yahoo boy. economic and financial crime commission, 1(3), 38-39. http://journal.unnes.ac.id/sju/index.php/jils http://www.pcworld.com/article/122492/the_new_security_war.htm#tk.mod-rel http://www.pcworld.com/article/122492/the_new_security_war.htm#tk.mod-rel http://www.idgnews,net/ http://www.pcworld.com/businesscenter/article/205051/cybercrime http://blogs.technet.com/b/microsoft_on_theissues_africa/archive/2010/12/9/fighting-cybercrime-in-nigeria-aspx http://blogs.technet.com/b/microsoft_on_theissues_africa/archive/2010/12/9/fighting-cybercrime-in-nigeria-aspx 334 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils quote ransomware is unique among cybercrime because in order for the attack to be successful, it requires the victim to become a willing accomplice after the fact james scott, sr. fellow, institute for critical infrastructure technology about authors ngboawaji daniel nte is professor and head of department of intelligence and security studies, novena university, delta state. he also a professional researcher at security studies. urowayinor kelita esq is a full professor of intelligence and security studies at novena university, nigeria. he has written extensively on different areas of public safety and national security. he has over seventy journal articles to his credit. he also now serving as a professional lecturer and researcher at the department of intelligence and security studies, novena university, delta state, nigeria. bribena kelvin enokie is a lecturer at the faculty of law niger delta university, wilberforce island, amasoma, bayelsa state, nigeria. onyeka bienose, is director, business development, african regional office, global intelligence, peace and security institute, nigeria. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 35 available online at http://journal.unnes.ac.id/sju/index.php/jils research article human rights and business: human rights violations in the outsourcing industry in modern business indonesia saru arifin faculty of law, university of pécs, hungary  saru4rifin@gmail.com submitted: march 18, 2021 revised: april 21, 2021 accepted: may 15, 2021 abstract this article analyzes outsourcing job practice in contemporary business activities in indonesia, focusing on types and factors that contribute to human rights abuse in the outsourcing business, based on academic literature and regulations on business and human rights. in today's indonesian labor market, outsourcing jobs are a kind of phantom. laborers risked not receiving adequate wages, work insurance, or equal bargaining power with the outsourcing company under this job recruitment system. laborers' associations protested almost every may day moment, demanding that the outsourcing job system be abolished. they also demanded to be hired directly by the company rather than by the outsourcing firm. unfortunately, the human rights issue in various context: national and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 1, may 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-2633-0927 36 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils government responded to the demand by enacting the workforce act no. 13 of 2013. this law endorsed outsourcing with specific requirements that provide clear guidance for both employers and employees. however, in practice, companies frequently break outsourcing roles by hiring workers to staff their core business activities. on the other hand, outsourcing corporations also violate the act's basic rights for outsourcing laborers. as a result, it implies human rights violations. laborers were frequently threatened with losing their right to a healthy working environment, being fired from their contract without consultation, and having their fundamental rights violated. human rights violations in outsourcing job activities are primarily caused by a lack of government oversight and law enforcement. keywords: outsourcing, worker, company, act of workforce, human rights abuses. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 37 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 35 table of contents ……………………………..….………. 37 introduction ………………………………….……………. 37 the outsourcing workers' historical background ……………………………………………….… 41 outsourcing workers in indonesia ………………. 43 outsourcing workers policy implementation . 45 human rights violations in the outsourcing industry ……………………………………………………… 47 conclusion ………………………………………….…..…… 49 references ………………………………………………….… 49 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. how to cite: arifin, s. (2021). human rights and business: human rights violations in the outsourcing industry in modern business indonesia. jils (journal of indonesian legal studies), 6(1), 35-52. https://doi.org/10.15294/jils.v6i1.45841 introduction in today's indonesia, business competition is extremely fierce. it has an impact not only on national businesses, but also on global http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/jils.v6i1.45841 38 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils business. every business venture competes in business races to stay ahead of the competition. human resources that come from outside their core business activities, such as outsourcing, are the new business engine that contributes to race1. the international monetary fund (imf) introduced this outsourcing system as one of the conditions that indonesia had to meet in order to obtain a loan during the 1998 economic crisis2. a company gains many benefits from this type of human resources system, including the ability to pay less attention to its determinant component. they simply concentrated on the core of their business. the business enterprise has a golden opportunity, which is in direct opposition to the workers' situation. there is no direct relationship between the company and the workers in the outsourcing system. this new model relationship eliminates the company's responsibility for everything related to workers' rights, including wages, insurance, job security, health, and other fundamental rights. according to several studies, workers' legal protection is weak under the outsourcing system3. because of the job agreement signed 1 in the global business, outsourcing contributes significantly to the development of any business and labor market. see martin falk & bertrand m. koebel, outsourcing, imports, and labour demand, 104 scandinavian journal of economics 567, 567–586 (2002); sharmila rudrappa, making india the ‘mother destination’: outsourcing labor to indian surrogates, research in the sociology of work (elsevier, 2010), robert feenstr, et.al., the impact of outsourcing to china on hong kong's labor market,' 95 the american economic review 1673, 1673–1687 (2003). 2 dinar wahyuni, posisi pekerja outsourcing dalam undang-undang nomor 13 tahun 2003 tentang ketenagakerjaan, 2 aspirasi 137, 137-150 (2012). 3 uti ilmu royen, perlindungan hukum terhadap pekerja / buruh outsourcing (studi kasus di kabupaten ketapang), thesis (universitas diponegoro, 2009) <http://eprints.undip.ac.id/25014/1/uti_ilmu_royen.pdf>. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 39 available online at http://journal.unnes.ac.id/sju/index.php/jils between the job provider and the company4, there are no guarantees that workers will receive certain rights from his employer5.. the outsourcing system is outlined in articles 64 to 66 of the workplace act no. 13 of 20036. even the outsourcing model is not clearly stated in the article. however, businesspeople interpret it as an outsourcing model, which leads to the emergence of new outsourcing firms, much like a fungus that grows during the rainy season. at the time of its introduction, the new bill that legalizes outsourcing posed few problems for the workforce. it creates a large number of jobs for people who are unemployed7. the workers require funds to support their families. they are only concerned with getting a job and earning money, not with the type of work they will do, their rights, or the level of job security they will accept. in short, workers are unaware of their rights as employees8. when worker's rights abuses emerge one by one—a wave of a demonstration demanding their rights voiced by a multiple worker's association9—those 'honeymoons' no longer happen. workers demanded that companies respect their rights and that the government abolish the unjust outsourcing system. the outsourcing 4 siti kunarti, perjanjian pemborongan pekerjaan (outsourcing), 9 jurnal dinamika hukum 67, 67–76 (2009). 5 barzah latupono, perlindungan hukum dan hak asasi manusia terhadap pekerja kontrak (outsourcing) di kota ambon, 17 sasi 59, (2011). 6 kunarti, supra note 4. 7 lis julianti, perlindungan hukum terhadap tenaga kerja outsourcing di indonesia, 5 jurnal advokasi fh unmas 2-3, (2015). 8 yenita petreilla, ‘masih relevankah sistem outsourcing di tanah air?’, bisnis.com, 2019 <https://ekonomi.bisnis.com/read/20190121/12/880788/masihrelevankah-sistem-outsourcing-di-tanah-air> [accessed 28 september 2020]. 9 see royen, supra note 3. http://journal.unnes.ac.id/sju/index.php/jils 40 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils system brings many benefits to businesses while also causing misery for workers10. according to some studies, the worker and the job provider are not on an equal footing. the agreement they signed mentions the worker's status as an outsourcing employee, but there are no provisions regarding the employee's rights or job security11. royen 12goes into great detail about how outsourcing workers are treated unfairly: a. there is no clear distinction made by the company between core business and support jobs. this situation is in direct conflict with the outsourcing provisions of articles 64 to 66 of the workforce act of 2003. b. there is evidence that in some cases, a venture will share a portion of its business with an unregistered outsourcing firm. this agreement is illegal because it is made with the intent of breaking the law, and this type of business, of course, implies the workers' rights. c. outsourcing workers and their rights to work are not protected under the law. workers who are directly hired by the company are not included. as a result, the worker's rights and obligations are not stated in any explicit agreement. furthermore, they are paid less than the company's employees. what's more unfortunate is that agency workers do not provide adequate rest time or work safety. 10 andriyanto adhi suyanto & heru nugroho, perlindungan hukum terhadap hakhak pekerja outsourcing berdasarkan asas keadilan,' 3 jurnal yuridis 61, 61-74 (2016). 11 amelia torianto julianti, rasa aman pekerja outsourcing (studi fenomenologi pekerja outsourcing di surabaya), 3 agora 140, 140–147 (2015); latupono, supra note 5; royen, supra note 3. 12 royen, supra note 3. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 41 available online at http://journal.unnes.ac.id/sju/index.php/jils the above-mentioned fact reveals a pattern of outsourcing workers being subjected to human rights violations. it connects the outsourcing system's flaws with the government's lack of oversight and enforcement. the human rights issue that arises in indonesia's outsourcing workers system will be examined in this article. following a description of the paper's background, the historical context of the outsourcing workers system from an international model to local adoption will be discussed. the next topic will be a brief discussion of indonesian outsourcing regulations and their implementation. the next section will critically examine human rights violations in outsourcing jobs and conclude with a conclusion to emphasize the article's main point. the outsourcing workers' historical background there is no concrete evidence of when outsourcing was first used. in his brief notes, kim13 explains that outsourcing is evolving in response to human activities. troacă & bodislav14 attempted to trace the origins of outsourcing after wwii, but only discovered it in 1990 in the united states business practice. the term "outsourcing" was coined in the united states by combining two words: "out and sources." it refers to obtaining a source from the outside. later, the term was officially coined in economic jargon to denote the use of external [human] resources to grow a company's internal operations. in an 13 moses kim, 'the history of outsourcing from carpenters to accountants,' medium.com, 2018. 14 victor-adrian troacă & dumitru-alexandru bodislav, outsourcing. the concept, 6 theoretical and applied economics 51, 51-58 (2012). http://journal.unnes.ac.id/sju/index.php/jils 42 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils outsourcing system, the company transfers its materials and resources to an external provider within a specified time frame in order to support its internal business. the outsourcing vendors' competition attracts the company's attention to make a qualified standard, as is the new trend in the business environment today. this standard to process selection criteria is explained by vaxevanou & nikolaos15. the process began with the preparation phases, then moved on to vendor selection, transition, relationship management, and finally reconsideration. each of the steps is made up of a large number of separate subactivities. the company should ask an exact and philosophical question about why it needs external help to support its core business during the preparation phase. this step also establishes the vendor's qualification in relation to their business. as the fluffing of the criteria, it is a very important step for a business enterprise. it has an impact on the external vendor's expected outcome16. after the first phase has been completed successfully, the next step is to provide vendors with a selection. this step is also critical because the company must find vendors who meet the criteria they set while also establishing mutually beneficial relationships17. following that, the corporation seeks out the appropriate vendor who meets the defined criteria and adheres to the corporate culture standard. following these two phases, the transition has been completed. establish intensive communication among the parties at this stage. its 15 anthi vaxevanou and nikolaos konstantopoulos, basic principles the philosophy of outsourcing, 175 procedia social and behavioral sciences 567, 567–571 (2015). 16 id. 17 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 43 available online at http://journal.unnes.ac.id/sju/index.php/jils goal is to determine whether the vendor has fully implemented the contract. this step has a big impact on the company's and vendor's management relationships when it comes to putting their agreement into action18. reconsideration is the final stage of the outsourcing process. the company conducts assessments to work resulting from the agreement with vendors during this phase. the vendor evaluation refers to the criteria that the company established at the outset19. outsourcing workers in indonesia except for the content of government policy, there is no official source that can be seen in indonesia's outsourcing system. in 1989, the indonesian government issued decree of the minister of trade of the republic of indonesia no.264 / kp / 1989 concerning subcontract work for processing companies in bonded zones, which was issued by the ministry of trade. according to the decree, subcontract work has characteristics that are similar to those of the outsourcing system. under the decree of the minister of trade of the republic of indonesia number 135 / kp/ vi1993 on the entry and release of goods to and from bonded zones, the government issued a new regulation in the form of a minister decree in 1993 to determine the type of business that can use the outsourcing system. the garment companies in bonded zones are the target of this decree. the export market is industrial, allowing the company to outsource some of its processing products to other companies, reducing production costs 18 id. 19 id. http://journal.unnes.ac.id/sju/index.php/jils 44 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils and time. this strategy was devised in order to meet the deadline for export market demand. similarly, indonesia's outsourcing work system was initially restricted to specific production models aimed solely at the export market. in a nutshell, trade and industry policies include policies on outsourcing work systems20. the growth of outsourcing in business activities has been overseen by the government. another government policy aimed at protecting outsourcing workers demonstrates this. through the minister of manpower of the republic of indonesia's circular letter number se/08/men/1990 concerning the responsibility of contracting companies for the protection and welfare of contractor company workers, the policy becomes the starting point for officially recognizing the outsourcing work system as a labor policy. the ministry of manpower intended for outsourcing workers and company employees to have equal wage rights. regrettably, the outsourcing firm was against this policy. they claim that paying equal wages to outsourced workers and company employees was difficult for their company. the government issued minister of manpower regulation no. per-02/men/1993 concerning fixed time work agreements in order to accommodate the outsourcing company. outsourcing workers' rights are safeguarded under this legal policy. after implementing a technical regulation on outsourcing workers ten years ago, the government has given the outsourcing system a lot more attention. it is demonstrated by the passage of acts number 13 of the year 2003 on workforce, which legalized the outsourcing system. in indonesia, the law recognizes outsourcing as a new business model. the corporation can ask an outside party to participate in the business process that supports its core business under articles 64 to 66. 20 gematriwira, 'sejarah kebijakan outsourcing di indonesia,' wordpress, 2016. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 45 available online at http://journal.unnes.ac.id/sju/index.php/jils outsourcing workers policy implementation outsourcing regulation was enacted under law 13 of 2003, which adopted some rules from the previous legal policy relating to some substance modifications. outsourcing is defined in this law as the transfer of part of a company's work implementation to another company through a written agreement, which can take two forms: a work contract agreement or the provision of worker/labor services, as regulated in article 64 of law number 13 of 200321. it must comply with the provisions of article 65 of law no. 13 of 2003 in order to convey the implementation of work through a work contract agreement: a. jobs submitted to other companies are performed separately from the main activity; performed on direct or indirect orders from the employer; is a company-wide supporting activity; and do not directly interfere with the production process. b. the company that receives the contract for work must be a legal entity. c. they provide protection and working conditions, at the very least in collaboration with the employer or in accordance with legal requirements. in reality, some studies show that the core company and outsourcing company are abusing those regulations. husein22, 21 i nyoman putu budiartha, hukum outsourcing: konsep alih daya, bentuk perlindungan, dan kepastian hukum, setara press, november (malang: cita intrans selaras, 2016). 22 mohammad zaki hussein, 'sistem kerja kontrak dan outsourcing dalam perspektif ham,' indoprogress.com, 2012, 2–6 <https://indoprogress.com/2012/12/sistem-kerja-kontrak-dan-outsourcinghttp://journal.unnes.ac.id/sju/index.php/jils 46 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils hussein, a work society party member, insisted that outsourcing, for example, is widely used in jobs that are central to a company's operations. he went on to say that the various distribution companies channel different types of labor. furthermore, outsourcing workers face wage discrimination. for the same work in the same place with the same working hours, discrimination occurred between three types of labor: permanent workers, contract workers, and outsourced workers. hussein23 goes on to say that, in terms of basic wages, the average basic wage for contract workers is 14% lower than the average basic wage for permanent workers. in comparison, the basic wages of outsourcing workers are 17.45 percent lower than those of regular workers. the average total wage of contract workers is 16.71 percent lower than the average total wage of permanent workers. at the same time, outsourcing workers' total wages are 26% lower than permanent employees' total wages. furthermore, many outsourcing companies, according to pettriella24, do not make contractual agreements or provide specific information about the types of work available, so workers are forced to work whatever is required. worse, many outsourcing firms are unlicensed, making it difficult for the government to keep track of them. dalam-perspektif-ham/> [accessed 25 september 2020]. see also petreilla, supra note 8. 23 id. 24 petreilla, supra note 8. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 47 available online at http://journal.unnes.ac.id/sju/index.php/jils human rights violations in the outsourcing industry indonesia is committed to the implementation of human rights. it can be seen in the enactment of law number 39 on human rights in the year 1999. the 1945 constitution also guarantees some basic human rights. in addition, in 2005, indonesia ratified two fundamental human rights covenants, the international covenant on civil and political rights (iccpr) and the international covenant on economic and cultural rights (icecr). these legal foundations for human rights are the guiding principles for human rights implementation in all social, economic, and cultural activities. in terms of outsourcing worker issues, the aforementioned human rights violations can be found in two sectors. they are wage discrimination against outsourcing workers, as well as a lack of job security, health benefits, vacation time, and worker exploitation. from the standpoint of human rights, this discrimination is in violation of article 38 paragraph (3) of law no. 39 of 1999 on human rights, which states that "everyone, whether male or female, who performs the same, comparable, equal, or similar work, is entitled to the same wages and terms of employment agreement." discrimination like this violates article 7 of the international covenant on economic, social, and cultural rights, which was ratified by law number 11 of 2005. workers have the right to "equal remuneration for equal value work without distinction”. according to hussein25, this discrimination occurs as a result of contract workers' and outsourcing workers' weak bargaining positions. contract labor and outsourcing are difficult to organize because of their temporary and vulnerable employment relationship. 25 id. http://journal.unnes.ac.id/sju/index.php/jils 48 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils outsourced workers' working relationships, which are with the supplier company rather than the company they work for, exacerbate the problem. it is recommended that core companies that respect human rights obligations choose business partners who are wellmanaged, dependable, and ethical26. as a result, the company should consider its business interests as well as the track record of its business partners. in this context, the human rights obligation must be included in the determination of the outsourcing vendor's criteria at the start of the preparation phase. mcphail27, offers three pieces of advice for the state as the primary bearer of responsibility for respecting, implementing, and protecting human rights. for starters, states are seen as having an absolute responsibility to ensure that corporations do not violate human rights, whether these violations occur within or outside their borders. second, the state's human rights obligations are assumed to extend to all of its interactions with corporations, including procurement of goods and services, public/private finance initiatives, and support from government agencies such as export credit agencies. finally, the guiding principles state that corporations are responsible for respecting human rights in addition to, but not in lieu of, the state's responsibilities. 26 barcelona panda, multinational corporations and human rights violations: call for rebuilding the laws of twenty-first century, 20 journal of financial crime 422, 422–432 (2013). 27 ken mcphail & carol a. adams, corporate respect for human rights: meaning, scope, and the shifting order of discourse, 29 accounting, auditing, and accountability journal 650, 650–678 (2016). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 49 available online at http://journal.unnes.ac.id/sju/index.php/jils conclusion the companies' ignorance of outsourcing guidelines leads to human rights violations in indonesia's outsourcing job practice. the outsourcing system's concept is not well understood by the companies. they see outsourcing as a boon because it allows them to force their economic advantages by hiring low-wage workers without having to fill out the usual paperwork. while the government pays less attention to the activities of the companies, this situation has become widespread. laborers, on the other hand, are weak as a result of their desire for a job that will provide them with financial benefits. this circle of outsourcing abuses entails systemic human rights violations. the government should thoughtfully plan and implement law enforcement management, according to this article. on the other hand, it is critical to clearly communicate outsourcing to businesses and workers. references budiartha, i. n. p. (2016). hukum outsourcing: konsep alih daya, bentuk perlindungan, dan kepastian hukum. malang: cita intrans. falk, m., & koebel, b. m. (2002). outsourcing, imports and labour demand. scandinavian journal of economics, 104(4), 567-586. https://doi.org/10.1111/1467-9442.00302 gematriwira, g. (2016). sejarah kebijakan outsourcing di indonesia’, retrieved from https://gemaoutsourcing.wordpress.com/2016/04/18/sejarahkebijakan-outsourcing-di-indonesia/ hsieh, c. t., & woo, k. t. (2005). the impact of outsourcing to china on hong kong's labor market. american economic review, 95(5), 1673-1687. http://journal.unnes.ac.id/sju/index.php/jils 50 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils hussein, m. z. 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(2016). corporate respect for human rights: meaning, scope, and the shifting order of discourse. accounting, auditing & accountability journal, 29(4), 650–78. https://doi.org/10.1108/aaaj-09-2015-2241. panda, b. (2013). multinational corporations and human rights violations: call for rebuilding the laws of twenty-first century. journal of financial crime, 20(4), 422–432. https://doi.org/10.1108/jfc-02-2013-0006. petreilla, y. (2019). masih relevankah sistem outsourcing di tanah air? bisnis indonesia, retreived from https://ekonomi.bisnis.com/read/20190121/12/880788/masihrelevankah-sistem-outsourcing-di-tanah-air, accessed 28 september 2020 royen, u. i. (2009). perlindungan hukum terhadap pekerja/buruh outsourcing (studi kasus di kabupaten ketapang). thesis, universitas diponegoro, semarang. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 51 available online at http://journal.unnes.ac.id/sju/index.php/jils rudrappa, s. (2010). making india the “mother destination”: outsourcing labor to indian surrogates. in gender and sexuality in the workplace. emerald group publishing limited. suyanto, h., & nugroho, a. a. (2017). perlindungan hukum terhadap hak-hak pekerja outsourcing berdasarkan asas keadilan. jurnal yuridis, 3(2), 61-74. https://doi.org/http://dx.doi.org/10.35586/.v3i2 torianto, a. (2015). rasa aman pekerja outsourcing (studi fenomenologi pekerja outsourcing di surabaya). agora, 3(2), 140-147. troacă, v. a., & bodislav, d. a. (2012). outsourcing. the concept. theoretical and applied economics, 6(6), 51-58. vaxevanou, a., & konstantopoulos, n. (2015). basic principles the philosophy of outsourcing. procedia-social and behavioral sciences, 175, 567-571. https://doi.org/10.1016/j.sbspro.2015.01.1238 wahyuni, d. (2011). posisi pekerja outsourcing dalam undangundang nomor 13 tahun 2003 tentang ketenagakerjaan. aspirasi: jurnal masalah-masalah sosial, 2(2), 137-149. http://journal.unnes.ac.id/sju/index.php/jils 52 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils about authors saru arifin, s.h., ll.m. is a phd student at university of pecy hungary. he obtained a bachelor's degree of law from universitas islam indonesia (yogyakarta, indonesia), and master's degree of law from universitas gadjah mada (yogyakarta, indonesia). his area of research interest including international law especially in the state boundaries law, human rights law, disaster law, and constitutional law. some books have been published on several publishers such as hukum perbatasan darat antar negara (sinar grafika, jakarta, 2014), illiberal tendencies in indonesian legislation: the case of the omnibus law on job creation (the theory and practices of legislation, 2021), disaster resilient village-based approach to disaster risk reduction policy in indonesia: a regulatory analysis (jàmbá: journal of disaster risk studies, 2021), and adoption and implementation of clinical legal education programmes in the indonesian legal education system (asian journal of legal education, 2021). http://journal.unnes.ac.id/sju/index.php/jils https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=99kye6aaaaaj&sortby=pubdate&citation_for_view=99kye6aaaaaj:1yqogdggb4wc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=99kye6aaaaaj&sortby=pubdate&citation_for_view=99kye6aaaaaj:1yqogdggb4wc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=99kye6aaaaaj&sortby=pubdate&citation_for_view=99kye6aaaaaj:zuybszzf8uac https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=99kye6aaaaaj&sortby=pubdate&citation_for_view=99kye6aaaaaj:zuybszzf8uac https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=99kye6aaaaaj&sortby=pubdate&citation_for_view=99kye6aaaaaj:vl0qpb8khfec https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=99kye6aaaaaj&sortby=pubdate&citation_for_view=99kye6aaaaaj:vl0qpb8khfec https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=99kye6aaaaaj&sortby=pubdate&citation_for_view=99kye6aaaaaj:vl0qpb8khfec attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23932975a625 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare jils (journal of indonesian legal studies) volume 5(1) 2020 29 available online at http://journal.unnes.ac.id/sju/index.php/jils research article the absolute comptence of the industrial relations court in resolving employment termination disputes ivan ndun1, yohanes g. tuba helan2, umbu lily pekuwali3 1,2,3 faculty of law, universitas nusa cendana, kupang, indonesia  ivanndun.in@gmail.com submitted: august 20, 2019 revised: december 15, 2019 accepted: april 25, 2020 abstract employment relations are subject to contracts agreed upon by employers and employees. law number 13 of 2003 clearly defined that employment relations as an agreement between an employer and their employees. the jurisdictional scope or competence of the industrial relations court is further elaborated in section 56 law number 2 of 2004. however, section 56 number law 2 of 2004 has spurred further debate regarding the proper competence of the industrial relations court, because, under this law, the court has issued ineffective and inefficient court decisions. this research analyzed and criticized the competence of the industrial relations court in presiding over the termination of employment contracts. in analyzing this problem, this paper deploys the theory of competence, theories of justice and the rule of law, subjective justice, the competence of the industrial relations court according to existing laws, and expert views on the contribution of existing literature towards the competence of the industrial relations court. this research emphasized that an excess of laws governs the termination of employment contracts, which supposedly lies under the competence of the industrial relations court. hence, to protect the rights of employees in the context of industrial relations, a judicial review of law number 2 of 2004 on manpower is required. keywords: industrial relations court; competence; employment disputes; termination; subjective justice nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue 1, may 2020 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils 30 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 29 table of contents ………………………………...………….….. 30 introduction ………………………………………………………. 30 competency theory? ..…………………………………………... 35 1. absolute competence ……….……………………………………….. 36 2. relative competence ………………………………………………… 36 competence of the industrial relations court …. 38 legal certainty and justice in employment disputes settlement ……………………………………………. 40 1. legal certainty theory ……………………………………………… 40 2. theory of justice: what does it mean for labors? ……………….. 41 3. workers and labors …………………………………………………. 42 the scope of the absolute competence of the industrial relations court in employment termination cases ……………………………………………….. 43 conclusion ……………………………………………………..…… 48 references …………………………………………………………… 48 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. how to cite: ndun, i., helan, y.g.t., & pekuwali, u.l. (2020). the absolute competence of the industrial relations court in resolving employment termination disputes. jils (journal of indonesian legal studies) 5(1), 29-52. doi: https://doi.org/10.15294/jils.v5i1.33159. introduction since dutch colonialism in indonesia, labor and employment has become a very crucial issue, where everyone needs a source of income in order to live. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/jils.v5i1.34017. https://doi.org/10.15294/jils.v5i1.34017. jils (journal of indonesian legal studies) volume 5(1) 2020 31 available online at http://journal.unnes.ac.id/sju/index.php/jils in order to do so, one is dependent upon others to draw an income.1 someone who lacks capital requires a source of employment from others, while others who have obtained sufficient capital will need employees in order to maintain the productivity of their capital. this relationship of dependence is known as an employment relationship, which occurs when a person (worker or employee) provides expertise and energy to another entity (employer or leader) in return for a sum of money.2 an employment relationship is defined as a relationship between employers and employees 1 ridwan halim & sri subiandini gultom, sari hukum perburuhan aktual 57-60 (1987). in the dutch colonial era, there were four labor types and labor laws in force. the four laws are slavery, servitude, labor, and poenale sanctie. the first law is slavery. at this time, indonesian people who were slaves did not have any rights, including the right to life. some rules that were made related to slavery at this time included regulations on the registration of slaves, taxes on slave ownership, or changing names for slaves. next is the law of servitude. at first glance, this law has similarities with slavery, it's just a bit lighter. a servant, according to this law, is a collateral because of a debt that cannot be repaid. as a result, as long as the debt is not paid off, a servant will continue to serve the employer. after the law of servitude, compulsory law emerged, which in practice was not much different from slavery. in compulsory law, people are forced to work in the interests of the authorities. one form of cruelty from compulsory law in the dutch colonial era is the construction of the daendels road as far as 1,000 km connecting between panarukan in east java and anyer in banten. poenale sanctie became labor and employment law in indonesia that came into force after compulsory labor law. the emergence of this law began with the existence of agrarische wet or the agrarian law in 1970. during this time, there were many large-scale private plantation companies. therefore, laws governing labor play a central role. initially, at the sanction poenale, a politie straaf regulation, aka the police criminal regulations was applied. this regulation emphasized the interests of employers and was finally abolished in 1879. its existence was replaced by koeli ordonantie (1880), which was later known as poenale sanctie. in this latest law, the dutch government prohibits coercion, threat or extortion in labor relations. in addition, agreements between workers and employers must be made in writing within a certain time frame. when this rule is violated, there will be sanctions imposed on violators, both employers and workers. for more comprehensive picture, please see eric jones, wives, slaves, and concubines: a history of the female underclass in dutch asia 257-285 (2011); harry j. benda, christiaan snouck hurgrounje and the foundations of dutch islamic policy in indonesia, 30 the journal of modern history. 338, 340-346 (1958); adrian vickers, a history of modern indonesia 245-255 (2013); david k. linnan, indonesian law reform or once more unto the breach: a brief institutional history, 1 australian journal of asian law. 1, 15-17 (1999); pratama herry herlambang, implementation on transfer of undertaking protection of employment to outsourcing labors in semarang indonesia: a legal approach. 3 jils (journal of indonesian legal studies). 109, 111-113 (2018). 2 abdulkadir muhammad, hukum perjanjian 115-117 (2006); jan drahokoupil & brian fabo, the platform economy and the disruption of the employment relationship. 5 etui research paper-policy brief. 1, 4-5 (2016); dionne pohler & joseph a. schmidt, does pay‐for‐performance strain the employment relationship? the effect of manager bonus eligibility on nonmanagement employee turnover, 69 personnel psychology. 395, 400-415 (2016); mieke audenaert, alex vanderstraeten, & dirk buyens, when affective well-being is empowered: the joint role of leader-member exchange and the employment relationship. 28 the international journal of human resource management. 2208, 2210-2219 (2017). http://journal.unnes.ac.id/sju/index.php/jils 32 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils after an employment agreement has been reached. workers have a very important role in achieving national development goals, increasing the quality of national development, and in protecting their rights and interests in accordance with the principles of dignity and humanity.3 in line with the new era of governance in indonesia, namely the reform era, which has renewed all arenas of national and state life, presidential decree number 83 of 1998 ratified the international labor organization (ilo) convention number 87 of 1948 concerning the freedom of association and protection of the right to organize/convention concerning the freedom of association and protection of the right to organize.4 the regional/central labor dispute settlement committee under the auspices of the ministry of manpower, which was established in 1957, no longer has the jurisdictional authority to preside over disputes regarding employment termination, which has been governed by district courts under the provisions provisions of law number 2 of 2004 concerning industrial relations dispute settlement since january 14, 2005. by the regional/central labor dispute settlement committee, these cases were tried by summoning the disputing parties, namely employers and workers/labor unions.5 provisions in law number 2 of 2004 state that the industrial relations court is a special court that functions as a general court (article 55). if the disputing parties agree to settle in court, then in article 55 of act number 2 of 2004 governs the right to examine, hear and decide on an industrial relations dispute under the industrial relations cour,t which is a special court within the scope of general courts. according to article 56 of act number 2 year 2004, the industrial relations court has the duty and authority to examine legal 3 siswanto sastrohadiwirjo, manajemen tenaga kerja indonesia: pendekatan administratif dan operasional 75-76 (1987); samsuni, manajemen sumber daya manusia. 17 al-falah: jurnal ilmiah keislaman dan kemasyarakatan. 113, 120-121 (2017); dimas ardiansyah, eny rochaida, & diana lestari, pengaruh upah dan tingkat pendidikan terhadap penyerapan tenaga kerja. 2 jurnal ilmu ekonomi mulawarman (jiem) 15, 20-22 (2018). further, the indonesian ministry of manpower underlines that currently there are still three important problems that the government must face in creating human resources or workers. he said the three issues were related to the quality of workers, the quantity of workers and the problem of worker spread. see dias prasongko, ali akhmad noor hidayat (ed), menteri tenaga kerja sebutkan tiga masalah sdm indonesia, tempo, https://bisnis.tempo.co/read/1144463/menteri-tenaga-kerja-sebutkan-tigamasalah-sdm-indonesia/full&view=ok 4 lalu husni, pengantar hukum ketenagakerjaan indonesia 35-37 (2001). 5 thoga m. sitorus, masalah ketenagakerjaan di indonesia dan di daerah (pasca reformasi) 34-39 (2007). http://journal.unnes.ac.id/sju/index.php/jils https://bisnis.tempo.co/read/1144463/menteri-tenaga-kerja-sebutkan-tiga-masalah-sdm-indonesia/full&view=ok https://bisnis.tempo.co/read/1144463/menteri-tenaga-kerja-sebutkan-tiga-masalah-sdm-indonesia/full&view=ok jils (journal of indonesian legal studies) volume 5(1) 2020 33 available online at http://journal.unnes.ac.id/sju/index.php/jils disputes and issue court decisions (law number 2 of 2004 concerning settlement of industrial relations disputes). however, the provisions of article 56 of act number 2 of 2004 have been much debated, because the jurisdictional scope or competence of the industrial relations court in resolving industrial relations disputes remains unclear. the scope of the industrial relations court’s jurisdiction is contained in the provisions of article 56 of act number 2 of 2004, which is considered by some legal scholars as a redundant legal provision. for example, according to imam soepomo (which is further elaborated by hm laica marzuki6, employment termination disputes are part of a dispute over employment rights, such that employment termination disputes are contained only in the provisions in paragraph 1 of article 56. provisions of article 56 paragraph (1) states that the industrial relations court is authorized to examine and decide upon the settlement of industrial relations disputes regarding labor rights. regarding paragraph (3) of the same article, soepomo & marzuki interprets employment termination disputes as part of a dispute regarding labor rights; thus, paragraph (1) of the same article should be sufficient. furthermore, concerning paragraph (2) of the same article, there are scholars who argue that the industrial relations court is not authorized to examine and decide upon disputes over vested interests, because such disputes have been sufficiently elaborated in employment agreements or collective labor agreements. this 6 laica marzuki, mengenal karakteristik kasus-kasus perburuhan, 133 varia peradilan. 145, 155156 (1996). some weaknesses of the manpower act have been shown and highlighted by some previous researches, where there are inconsistencies with regard to employees with certain employment agreements, and even regarding industrial relations courts. during this time, the court in charge of disputes in industrial relations has been judicial. this is considered inappropriate because the agency should specifically deal with industrial relations issues. instead of judicial institutions, industrial relations courts are more suitable executive institutions. not only that, the industrial relations court must also provide workers with a friendly justice search service. moreover, currently in practice, disputes between workers against entrepreneurs in the industrial relations court ended with the victory of employers. the majority are due to financial problems from the workers. please see also aloysius uwiyono, mekanisme penyelesaian perburuhan dikaitkan dengan pola hubungan perburuhan. 22 jurnal hukum & pembangunan. 476, 480-485 (2017); abdul rasyid saliman & e. vita mutiarawati. model perlindungan hukum integratif buruh migran indonesia dalam masyarakat ekonomi asean. 10 progresif: jurnal hukum. 143, 149-153 (2016); tongam sihol nababan, elvis fresly purba, & jongkers tampubolon. influence of input value and labor expenditure on output value: a case of micro and small scale industry in indonesia. 4 integrated journal of business and economics. 45, 50-55 (2020). http://journal.unnes.ac.id/sju/index.php/jils 34 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils situation has resulted in legal uncertainty, especially for workers who fight for their rights to obtain legal certainty and justice. in carrying out the provisions contained inarticle 56 of act number 2 of 2004 concerning settlement of industrial relations disputes, the industrial relations court as a judicial institution that has the competence to resolve industrial relations problems has failed to provide legal certainty and a sense of justice for both employers and employees. the court’s excessive jurisdictional scope has resulted in ineffective and inefficient decisions. as an example, during a hearing that is part of a lawsuit, the plaintiff often misinterprets the case being experienced. frequently, the plaintiff submits a lawsuit regarding improper termination of employment, but, in the positive description, the problem is not the mechanism and procedure for employment termination itself. rather, the grounds for the plaintiff’s dispute are the improper fulfillment of their rights after employment termination. such inappropriate handling of disputes has an impact on the purpose of the industrial relations court to settle industrial relations disputes. thus, employers and workers will not achieve legal certainty and a sense of justice through the industrial relations court.7 the problem examined in this study is as follows: what is the proper competence of the industrial relations court in employment termination cases? the method used in this study is a normative juridical research model, specifically the statute approach method. this study uses statute approach method to examine legislations8 that govern the competence of the industrial relations court in resolving employment termination disputes. 7 saiful anwar, sendi-sendi hubungan pekerja dengan pengusaha 50-55 (1991). there are several relationships between employers and workers that are also very important to underline. see mangaraja manurung, pengaturan perjanjian kerja waktu tertentu dalam hubungan kerja antara pekerja/buruh dengan pengusaha. 2 jurnal pionir. 215, 220-221 (2017); waluyo zulfikar, & ipah ema jumiati, formulasi kebijakan pendirian lembaga peradilan khusus hubungan industrial di kabupaten bekasi. 8 jurnal administrasi publik. 125, 130-135 (2017); nina anggraeni, perlindungan hukum terhadap hubungan kerja dan pemutusan hubungan kerja (studi di pt triple s kediri). 5 jurnal ekuivalensi. 89, 90-95 (2019). in the same context and for more comprehensive picture and comparison, also see carol chan, carolina ramírez, & carolina stefoni. negotiating precarious labour relations: dynamics of vulnerability and reciprocity between chinese employers and their migrant workers in santiago, chile. 42 ethnic and racial studies. 1456, 1459-1472 (2019). 8 republic of indonesia, law number 2 of 2004 concerning industrial relations dispute resolution, industrial relation dispute resolution act (2004) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 35 available online at http://journal.unnes.ac.id/sju/index.php/jils the method used in this study is a normative juridical research model, specifically the statute approach method. this study uses the statute approach method to examine legislations (republic of indonesia state law number 2 of 2004 concerning industrial relations dispute resolution) that govern the jurisdictional scope or competence of the industrial relations court in resolving employment termination disputes. competency theory competence is also referred to as authority (power) to find (decide something). the competence of a particular court to examine, hear, and decide on a case depends on the type and level of such a court according to applicable laws and regulations. based on the type and environment of the court, the general courts are distinguished (including the industrial relation court and the corruption court) into military courts, religious courts, and state administrative courts. according to its level, indonesian courts consist of the first level court, the high court (appeals), and the supreme court (cassation level court). the first level court is determined by the number of regional level ii governments (regencies/municipalities), the number of high-level court cases as many as the number of provincial level administrations, while the supreme court (cassation) only exists in the national capital as the culmination of all existing court environments. it is understood that the main pillar of the state of law is the principle of legality. the principle of legality implies that the source of authority for government is legislation.9 theoretically, there are three ways to obtain authority derived from legislation10 namely: 1) attribution; 2) delegation of authority with delegates, and 3) delegation of authority with a mandate. each judiciary has two competencies, namely relative 9 ridwan halim, hukum administrasi negara 37-42 (2006). furthermore, the government legislation and the relation with competency theory, highlighted that some factors have globally impacts to the management of labor and employment itself. see tong wooi chow, lailawati mohd salleh, & ismi arif ismail. lessons from the major leadership theories in comparison to the competency theory for leadership practice, 3 journal of business and social review in emerging economies. 147, 150-153 (2017); venelin terziev, oleg latyshev, & marin georgiev. building competencies for social work through continuing vocational training. 3 international e-journal of advances in education. 638, 640-648 (2017). 10 agussalim andi gadjing, pemerintah daerah (kajian politik dan hukum) 44-46 (2007). http://journal.unnes.ac.id/sju/index.php/jils 36 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils competence and absolute competence.11 the division of absolute competencies and relative competencies is as follows. i. absolute competence regarding the authority of the judicial body to examine, hear, and decide on a particular case that is absolutely impossible for other judicial bodies to do; as known in law number 48 of 2009 concerning judicial power12, we know 4 (four) judicial environments, namely; general justice, religious justice, military justice, and state administrative courts. a. absolute competence of general courts is to examine, hear, and decide criminal cases committed by civilians and civil cases, unless a statutory regulation determines otherwise (article 25 paragraph (1)); b. absolute competence of the religious courts is examining, judging, and deciding cases of people who are muslim in the fields of marriage, inheritance, will, grant, waqaf, and sadaqah (article 25 paragraph (2)); c. absolute competence of military courts is to examine, hear, and decide criminal cases committed by members of the military both from the army, navy, air force, and police (article 25 paragraph (3)); d. the absolute competence of the state administrative court is examining, adjudicating, and deciding on disputes arising in the field of state administration between a person or civil legal entity with a state administrative body or officials due to the issuance of a state administrative decision, including personnel disputes or the nonissuance of a decision within time limit specified in a statutory regulation, while the issuance of a decision has become the obligation of the relevant state administration body or official (article 25 paragraph (4)). ii. relative competence the relative competence of the court is the authority of a particular judicial environment based on the jurisdiction of its territory, namely to 11 musthofa, kepaniteraan pengadilan agama 23-26 (2005). 12 republic of indonesia, law number 48 of 2009 concerning judicial power, judicial power act (2009) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 37 available online at http://journal.unnes.ac.id/sju/index.php/jils answer the question "which regional court is authorized to try a case?" in civil procedural law, according to article 118 paragraph (1) herzein inlandsch reglement/hir,13 the court authorized to hear a civil case is a district court (dc), whose jurisdiction covers the residence of the defendant (actor sequitur forum rei). submitting a lawsuit to a court outside the jurisdiction of the defendant's residence is not justified. the relative competence of the court is the authority of a particular judicial environment based on the jurisdiction of its territory, namely to answer the question "which regional court is authorized to try a case?" in civil procedural law, according to article 118 paragraph (1) hir, which is authorized to hear a civil case is a district court (dc) whose jurisdiction covers the residence of the defendant (sequitur actor forum rei). submitting a lawsuit to a court outside the jurisdiction of the defendant's residence is unjustified. however, what if a defendant has multiple official residences? in this case, the plaintiff can submit a lawsuit to one of the dc where the defendant lives. for example, a defendant in his identity card is stated as living in kupang city, where the defendant also owns a business, while, in fact, he also lives in denpasar. in such a case, the claim can be submitted to both dcs in the jurisdictions of kupang city and denpasar. thus, the starting point of determining which dc is authorized to hear cases is where the defendant lives and not the place of the crime (locus delicti) as in criminal procedural law. in the event that a case has several defendants, and each defendant resides in different jurisdictions, the plaintiff can file a claim to the dc whose jurisdiction covers the residence of one of the defendants. the plaintiff has the right to different options, provided that the defendant consists of several people and each of them lives in a different dc jurisdiction. if the defendant consists of more than one person, where one defendant is the principal debtor while the other defendant is the guarantor, then the relative authority of the dc who hears the case falls to the dc whose legal area covers the principal debtor's residence. another option is a lawsuit filed with the dc whose legal territory covers the plaintiff's residence, that is, if the defendant's residence is unknown. in order to not be manipulated by the plaintiff, a claim that the defendant’s residence is unknown requires a statement from the relevant 13 herzein inlandsch reglement (hir) (1941) http://journal.unnes.ac.id/sju/index.php/jils 38 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils official, such as a statement from the village head. if the object of the claim concerns an immovable object (fixed object), such as land, then the claim is filed with the dc whose legal area includes the immovable object. if the existence of immovable objects covers several jurisdictions, the claim is submitted to one dc at the choice of the plaintiff. however, if the case is a case for claims of compensation based on article 1365 of the civil code whose source comes from immovable objects, then the principle of the actor sequitur forum rei applies (the immovable object is a "case source" and not a "case object"). for example, demands for compensation over damages inflicted on a plantation. in the agreement, sometimes the parties determine a particular dc who competently checks and hears their case. this, based on the principle of freedom of contract, can be included as an agreement clause, but if a dispute occurs, the plaintiff has the freedom to choose whether the choice of a dc is based on the clause designated in the agreement or based on the principle of actor sequitur forum rei. thus, the choice of a particular place of domicile in an agreement does not absolutely exclude the principle of the sequitur forum rei actor, and the defendant cannot execute such action. for example, the court that has the authority to try a crime that took place in cimahi is the bandung district court. thus, it can be concluded that the term attribution of sjarah basah is equal to absolute competence and for the term delegation is the same as relative competence. competence of the industrial relations court competence is the authority (power) to determine or decide upon an issue. the competence of a court to examine, hear and decide on a case relating to the type and level of the existing court is based on applicable laws and regulations. based on the type and environment of the court, the general courts, military courts, religious courts, and state administrative courts (administrative courts) are distinguished. based on its level, the court consists of the first level court, the high court (appeals), and the supreme court (cassation level court). thus, the number of first-level courts is determined by the number of regional level ii governments (regencies/municipalities), while the number of high-level courts (number) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 39 available online at http://journal.unnes.ac.id/sju/index.php/jils is determined by the number of first-level governments (provinces). the supreme court only exists in the national capital from all existing court environments. law number 2 of 2004 governs court competences to examine and hear cases of industrial relations disputes or labor disputes. previously, industrial relations disputes were governed by the regional labor dispute settlement committee, but such disputes are now defined under the absolute competence of the irc. based on the provisions of article 1 number 17 of act number 2 year 2004, the irc is a special court established within the district court that has the authority to examine, hear and give decisions on industrial relations disputes. the limitation of the definition of industrial relations disputes based on the provisions of article 1 number 1 of act number 2 of 2004, is that industrial relations disputes are differences of opinion which result in conflicts between employers or joint entrepreneurs with workers or trade unions due to disputes regarding rights, interest disputes, termination of employment disputes and disputes between trade unions in one company. in accordance with the provisions of article 56 of act number 2 of 2004, it is stated that the industrial relations court has the duty and authority to examine and decide: 1. at the first level regarding rights disputes; 2. at the first and last level regarding interest disputes; 3. at the first level regarding employment termination disputes; 4. at the first and last level regarding disputes between labor union in 1 (one) company in general, the procedural law that applies to the irc is the civil procedure law which applies to courts in the general courts environment, except those specifically regulated in law number 2 of 2004. this is explicitly stated in article 57 of act number 2 of 2004 thus, this provision regulates the provisions and procedures of the procedure which constitute special provisions (lex specialis) and general procedural legal provisions that apply so that general civil procedural law only applies if it is not regulated in the special law. one exception in the irc’s procedural law is the explicit determination of the period of settlement of cases within a relatively short period of time. for the case of industrial relations disputes in the first level, law number 2 of 2004 has mandated the issuance of a court decisions within 50 (fifty) days after the first session (article 103). http://journal.unnes.ac.id/sju/index.php/jils 40 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils legal certainty and justice in employment disputes settlement i. legal certainty theory according to van apeldoorn, legal certainty means the following: a. the determination of laws that apply to concrete problems. with the stipulation of legal regulations to define concrete problems, litigants will know what provisions are used in a particular dispute from the outset; b. legal certainty means legal protection. thus, the parties to a dispute can be protected from the arbitrariness of a judgment. legal certainty ensures that only judges and lawmakers have the authority to determine life under the law.14 according to utrecht15, the law is tasked with ensuring legal certainty in human relationships. legal certainty is known in two types, namely: a. certainty due to law. in this case, the obligations of one entity to another under the law is made certain. for example, with the existence of a temporal statute of limitations (verjaring) as stated in article 78 of the criminal code, then the right of the government to prosecute a crime is limited to a particular timeframe; b. certainty in or from the law. certainty from the law can be achieved if the law is defined by statues and codes. certainty in the law entails creating regulations or methods that can be used as definite guidelines, and these methods must be enforced and carried out strictly. legal certainty is aimed to provide certainty in three different legal spheres: (1) how individual citizens can solve problems or disputes that may occur, (2) which public roles and institutions can provide assistance to citizens at large, and (3) how the authority of these public roles are defined and organized. thus, legal certainty must be inherent to the law itself. one way to achieve legal certainty in is to adhere to written rules that can guarantee and serve as guidelines. legal certainty is one of the 14 peter mahmud marzuki, penelitian hukum 52-56 (2005). 15 e. utrecht, pengantar dalam hukum indonesia 33-35 (1961). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 41 available online at http://journal.unnes.ac.id/sju/index.php/jils basic legal values in addition to other basic legal values, such as the values of justice and the values of religion as stated by radbruch. ii. theory of justice: what does it mean for labors? among legal experts, it is generally understood that the law has three main objectives, namely: a. justice; b. legal certainty or zekerheid; c. usability. justice is commensurate with balance and propriety (equity), as well as fairness (proportionality) while legal certainty is related to order and peace. meanwhile, usability can guarantee that all of these values will bring peace to life together. poerwadarminta16 emphasized that justice comes from the word “just”, which means impartial, not arbitrary, and sensible. the terminology of justice according to the nature (deeds, treatment) that is fair defends the rights and obligations of the community, a just situation in the life of the community. the purpose of the law cannot be separated from the ultimate goal of the life of the nation, state and society that can be separated from the values and philosophy of life of the society itself, namely justice. in addition, there are also forms of good, namely honesty, loyalty and generosity. another opinion, justice is seen as a good that includes all virtues such that justice approaches the notion of an ideal. for aristotle, justice must be distributed by the state to all people, and the law has the duty to guard justice so that justice will reach everyone. aristotle further stated that justice is a political stance which forms the basis of state regulations and these rules are the rules of what is right. here people must control themselves from pleonexia, which is to benefits themselves by seizing what belongs to others, or refusing to give what should be given to others. aristotle approached the problem of justice in terms of equality. in this connection aristotle distinguishes two forms of justice: 16 wjs porwadarminta, kamus umum bahasa indonesia, 567-568 (1982) http://journal.unnes.ac.id/sju/index.php/jils 42 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils a. distributive justice or justitia distributiva; distributive justice ijustice given to each person based according to their respective rights. distributive justice plays a role in the relationship between society and individuals, which is the principle of justice according to equanimity rather than equality. equanimity obliges the leader of a community to distribute responsibilities, functions, and rewards proportionally according to skills and services provided by each member of a community; b. cumulative justice or justitia cummulativa; cumulative justice is justice received by each member regardless of their individual form of service. this justice is based on transactions (sunallagamata) whether voluntary or not. this justice occurs in the field of civil law, for example in agreements to exchange; c. corrective justice (iustitia creativa); corrective justice focuses on correcting wrongs. if a rule is violated or an error is made, corrective justice seeks to provide adequate compensation for the injured party; if a crime has been committed, then the appropriate punishment needs to be given to the offender. however, injustice will result in disruption of "equality" that has been established or has been formed. corrective justice is tasked with restoring equality. from this description it appears that corrective justice is a judicial area while distributive justice is a field of government; d. protective justice ((iustitia protectiva); protective justice is justice that provides protection to everyone in society such that no one is treated arbitrarily. iii. workers and labors the definition of workers/laborers is very broad, that is, every person who does work, both inside and outside of the employment relationship, the latter of which has been inappropriately referred to as “free laborers”17. the definition of workers/laborers provided by article 1 paragraph (3) of law number 13 of 2003 includes anyone who works in order to receive wages or 17 imam soepomo, hukum perburuhan bidang hubungan kerja 33-40 (2001). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 43 available online at http://journal.unnes.ac.id/sju/index.php/jils other forms of compensation. this definition is narrower compared to the definition of labor in article 1 paragraph (2) which states: "everyone who is able to do work to produce goods and/or services is good for meeting their own needs and for the community." the definition of labor includes workers/laborers, civil servants, people who are looking for work, and people who are free professionals such as lawyers, doctors, traders, and tailors. in other words, a person is referred to as a worker/laborer if he/she does work to fulfill the orders of another person and, in exchange, receives wages or other forms of compensation. workers who work under the orders of others by receiving forms of remuneration but not in an employment relationship are not workers. the scope of the absolute competence of the industrial relations court in employment termination cases the settlement of labor disputes in indonesia after indonesian independence was initially regulated by the republic of indonesia emergency law number 16 year 1951 concerning the settlement of labor disputes18 which affirmed the definition of labor disputes. law number 16 year 1951 was amended by the republic of indonesia state law number 22 year 1957 concerning the settlement of labor disputes19 which was amended again by the republic of indonesia state law number 2 year 2004 concerning the settlement of industrial relations disputes. law number 2 year 2004 instituted a number of changes including the formation of the industrial relations court, which replaced the regional 18 republic of indonesia, emergency law number 16 of 1951 concerning the settlement of labor disputes (1951). 19 republic of indonesia, law number 22 of 1957 concerning the settlement of labor disputes (1957). http://journal.unnes.ac.id/sju/index.php/jils 44 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils level labor relations dispute settlement committee as well as the national labor relations dispute settlement committee, because these committees have been deemed inadequate for the purposes of resolving labor relations disputes nationally. however, these changes have been inadequate in defending the rights of workers or laborers. while the competence of the industrial relations court in resolving industrial relations disputes is contained in the provisions of article 56 of act number 2 of 2004, this contrary to the 1945 constitution of the republic of indonesia. according to article 56 law number 2 of 2004, the industrial relations court has the duty and authority to examine and decide: a. in the first level regarding rights disputes; b. at the first and last level regarding interest disputes; c. at the first level regarding termination of employment disputes; d. at the first and last level regarding disputes between trade unions/labor unions in one company. the definition of rights disputes is regulated in the provisions of article 1 rate 2 number 2 of 2004, which is a dispute arising from differences in interpretation between workers and employers on matters that have been regulated in laws and regulations, whether in law, agreements work, company regulations, or collective labor agreements. the difference in interpretation could occur because of the ambiguity of explanations in the laws and regulations in question and or differences in the assessment of a legal fact (legal facts). as an example, a termination of employment that is carried out arbitrarily or against the law is null and void; hence, in such cases, dismissed workers/laborers must be re-employed by their respective employers. in practice, however, employers tend to be reluctant to resume employment because of an acrimonious relationship with their employees. hence, in this case, an employee remains dismissed although the law stipulates otherwise. article 1 rate 3 number 2 of 2004 governs disputes arising in employment relations due to causes that have not been regulated in laws, work agreements, company regulation, or any other legally binding agreements. such disputes have included disputes regarding the provision of pickup buses for workers, disputes regarding uniform procurement for workers or laborers. these disputes are non-normative insofar as they are http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 45 available online at http://journal.unnes.ac.id/sju/index.php/jils unregulated in laws, work agreements, company regulations, or collective labor agreements termination of employment disputes are the most common in the industrial relations court. based on the provisions of article 1 rate 4 number 2 of 2004, disputes regarding termination of employment are disputes arising from the lack of conformity of opinion regarding the termination of employment relations carried out by one of the parties.20 based on the provisions of article 1 rate 5 number 2 of 2004, disputes between trade unions/labor unions are disputes between trade unions and other trade unions in only one company, because there is no agreement regarding membership, implementation of rights, and workunion obligations. this occurs as a result of republic of indonesia state law number 21 of 2000 concerning trade unions/labor unions (republic of indonesia state law number 21 of 2000 concerns trade unions/labor unions 2000) which do not provide restrictions on the number of unions or trade unions allowed in a single company. based on legal theory, there are two labor disputes, namely: disputes over rights and disputes over interests. iman soepomo states that labor disputes consist of rights disputes (rechtsgeshil) and interest disputes (belangengeschil)21. according to h.m. laica marzuki, there are two types of disputes that characterize labor cases, namely: a. cases of rights disputes (rechtsgeschil, conflict of rights) that adhere to the absence of such an agreement, emphasize the legal aspect (rechtsmatigheid) of the problem, mainly concerning the imposition of promises (defaults) on work agreements, a violation of labor laws and regulations; b. cases of disputes (belangeschillen, conflict of interest) that adhere to the absence of understanding regarding the work conditions and/or conditions of labor, especially concerning economic improvement and accommodation of the lives of workers. such disputes emphasize the doelmatigheid nature of the disputing parties.22 regarding the two opinions, the author draws the conclusion that the type of industrial relations dispute in letter (c.) disputes regarding 20 hidayat muharam, panduan memahami hukum ketenagakerjaan serta pelaksanaanya di indonesia 66-69 (2006). 21 supra note 17, at 114-115 22 supra note 6, at 211-213 http://journal.unnes.ac.id/sju/index.php/jils 46 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils termination of employment are arguably contained within rights disputes.23 furthermore, it is highlighted that, in a dispute over rights, the law is violated, not implemented or interpreted differently by the disputing parties. the author considers that article 56 of act number 2 of 2004 is redundant in formulating the types of industrial relations disputes.24 employment termination disputes are disputes that arise as a result of working relationships, either because of defaults on employment contracts or violations of laws, company regulations, or collective labor agreements. hence, employment termination disputes remain an inseparable part of rights disputes.25 this study argues that disputes between trade unions in a single workplace are basically disputes between one group of workers with another group of workers without involving employers. thus, such disputes are outside of the competence scope of the industrial relations court, because the irc is a special court established in a district court that has the authority to examine, hear and give decisions on industrial relations disputes (article 1 number 17 of act number 2 of 2004). when considering the judicial powers outlined for the general courts, religious courts, military courts, and state administrative courts according to article 10 paragraph (1) of law number 14 of 1970, such provisions contradict article 1 number 17 of act number 2 of 2004. article 10 paragraph (1) of law number 14 year 1970 declare that disputes between trade unions in one company should only be resolved within a general court rather than an industrial court. because the employers have minimal industrial relations actors, disputes between trade unions in a single workplace should be resolved in the general court environment, namely the district court. the absolute competence of the district court is to examine, decide and settle criminal cases and civil cases at the first level. (article 50 of law number 2 of 1986). disputes between trade unions/labor unions in one company are classified civil matters, so it should be the authority of the district court. interest disputes cannot also be resolved at the industrial relation court because the irc's authority is to examine, hear and give decisions on industrial relations disputes. (article 1 number 17 of act number 2 of 2004). according to the author, conflicts of interest can only be resolved 23 aloysius uwiyono, hak mogok di indonesia 57-60 (2001). 24 id. 25 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 47 available online at http://journal.unnes.ac.id/sju/index.php/jils through non-litigation channels, namely alternative dispute resolution (adr) which consists of mediation, conciliation or arbitration. the existence of adr is based on a paradigm to solve existing problems and not to win cases. adrs tend to solve disputes by finding a win-win solution in the form of a policy. that is, one party does not insist on winning the case, but resolves the problem. the author also found the fact that the formulation of article 56 of act number 2 of 2004 is redundant and contrary to article 24 paragraph (2) of the 1945 constitution of the unitary state of the republic of indonesia in conjunction with article 10 paragraph (1) of law number 14 of 1970 concerning judicial environment. article 24 of the 1945 constitution of the unitary state of the republic of indonesia reads as follows: a. judicial power is an independent power to conduct justice in order to uphold law and justice; b. judicial power is carried out by a supreme court and a judicial body under it in the general court environment, religious court environment, military court environment, state administrative court environment, and by a constitutional court; c. other bodies whose functions are related to judicial power are regulated in law. the formulation of article 1 point 17 of act number 2 of 2004 does not properly equate general justice with the district court because the district court is an agency that implements the judicial system in the form of examining and adjudicating cases. the general courts cannot be equated with the district courts and vice versa, because the general court is a process in establishing and finding laws, while the civil court is an institution for enforcing the law. the industrial relations court should only be authorized to handle cases of rights disputes, including employment termination disputes. interest disputes can only be resolved through non-litigation channels, namely alternative dispute resolution (adr) which consists of mediation, conciliation or arbitration, by seeking a win-win solution in the form of wisdom and focusing on doelmatigheid aspects of the problems that occur. disputes between trade unions/labor unions in one company are basically disputes between workers, without involving employers so that they can be classified into civil cases, should be the authority of the general justice environment, namely the district court. the judicial overreach of the http://journal.unnes.ac.id/sju/index.php/jils 48 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils industrial relations court thus results in a lack of legal protection for workers who deserve justice and legal certainty. the industrial relations court which is expected to be an institution intended by article 24 of the 1945 constitution of the republic of indonesia to conduct justice in order to enforce law and justice will not succeed in providing legal certainty and justice for workers. conclusion at this final part, it is concluded that the competency scope of the industrial relations court based on the provisions of article 56 of act number 2 of 2004 concerning labor is too excessive; thus, the industrial relations court should only have the duty and authority at the first level to settle the employment termination disputes. the authors suggest the following steps to be taken to restore proper judicial competency: the government and the house of representatives need to conduct a legislative review for law number 2 of 2004 concerning employment. a judicial review should clarify the competency of courts that resolve laborrelated disputes in order to provide legal assistance to workers/workers as well as maintaining legal certainty and justice. references anggraeni, n. 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(2017). building competencies for social work through continuing vocational training. international ejournal of advances in education 3(9), 638-659. about authors ivan ndun is lecturer at faculty of law, universitas nusa cendana, kupang, indonesia. his research interest on private law especially on labor and employment issues, as well as labor contract issue. he also involved on some projects concerning to labor and human rights. besides as lecturer, he working as researcher on labor and justice studies center. yohanes g. tuba helan is lecturer at faculty of law universitas nusa cendana, kupang, indonesia. her focus interests on labor issue in the context of administrative and private law. she involved on some research projects concerning to examination of industrial relations court in indonesia. umbu lily pekuwali is lecturer at faculty of law universitas nusa cendana, kupang, indonesia. he also working as director of research and community services unit on universitas nusa cendana. his research interest on labor and employment law issues. http://journal.unnes.ac.id/sju/index.php/jils 52 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils quote all labor that uplifts humanity has dignity and importance and should be undertaken with painstaking excellence. martin luther king, jr. http://journal.unnes.ac.id/sju/index.php/jils https://www.brainyquote.com/authors/martin-luther-king-jr-quotes jils (journal of indonesian legal studies) volume 5(2) 2020 361 available online at http://journal.unnes.ac.id/sju/index.php/jils research article renewable energy regulations in indonesia and india: a comparative study on legal framework ridoan karim1 , farahdillah ghazali2 , abdul haseeb ansari3 1 school of business, department of business law and taxation, monash university, malaysia 2 institute of oceanography and environment, universiti malaysia trengganu, malaysia 3 ahmad ibrahim kullliyah of laws, international islamic university malaysia (iium)  ridoan.karim@monash.edu submitted: june 12, 2020 revised: august 25, 2020 accepted: october 13, 2020 abstract individually and collectively, climate change has become the international agenda due to global warming and unusual weather patterns. the international renewable energy agency (irena) claims that the future world can only survive if the human civilisation takes a drastic turn towards renewable energy production. besides, the pandemic covid-19 has ventured us to revisit our behaviour towards the environment. indonesia and india, being two giant economies, has promised under the paris climate agreement to support the international agendas of climate change and sustainable development goals. many countries have shown their commitment to lower their carbon emissions by using renewable nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue2, november 2020 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0003-0835-3137 https://orcid.org/0000-0002-1966-9690 https://orcid.org/0000-0002-7380-3862 362 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils energy sources significantly. renewable energy generation opens a feasible door to attempts to combat climate change. this comparative analysis assesses the renewable energy laws and policies in indonesia and india, as they work towards their climate change commitments (unfccc). this research operates within comparative qualitative methodological structures and uses secondary empirical sources. building on similar and relative exposures, both the countries should benefit from each other and learn the legal and political implications to speed up the production of renewable energy and reduce greenhouse gas (ghg) emissions. keywords: renewable energy; law; policies; climate change; sustainable development http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 363 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 361 table of contents ………………………………...………….….. 363 introduction ………………………………………………………. 363 renewable energy development in indonesia …….. 367 i. the renewable energy policy in indonesia ……………………….. 368 ii. legal framework related to renewable energy in indonesia …… 371 renewable energy development in india ……………. 376 i. legal framework related to renewable energy in india ………… 379 ii. renewable energy regulatory actors in india ……………………. 381 iii. other regulatory support mechanisms in india ………………….. 383 comparison and concluding remarks ………………… 385 references …………………………………………………………… 387 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. how to cite: karim, r., ghazali, f., & ansari, a. h. (2020). renewable energy regulations in indonesia and india: a comparative study on legal framework. jils (journal of indonesian legal studies), 5(2), 361-390. https://doi.org/10.15294/jils.v5i2.41986 introduction the ever-increasing demand and supply for energy have a substantial impact on climate change. such a climate-changing pattern in the developing world is happening mainly because of the exploitation of fossil fuels. a transition in the energy sector from the traditional fossil fuels centred energy generation to environmentally friendly sources of energy, will certainly help mitigate the menace of climate change, especially in developing and least-developed countries. this transition may be achieved http://journal.unnes.ac.id/sju/index.php/jils 364 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils only by reducing the demand for energy and increasing the generation of renewable energy (hereinafter referred as re). however, reducing energy demand is not a good option due to many factors, including the economic factor. as a country develops, energy demand is projected to be increased. therefore, utilization of re is needed to successfully achieve the targets in climate plans by diversifying the energy mix of a country.1 since excessive and inefficient consumption of energy contributes to carbon pollution, hence, effective management of natural resources including renewable and non-renewable energies are additionally crucial factors for developing countries.2 due to emerging climate concerns, the paris agreement to the united nations framework convention on climate change (unfccc) was adopted on 12 december 2015 to boost a low carbon intensity future globally. this agreement is a milestone in global climate change governance and has attracted participation across the world, including all major emitters.3 the paris agreement is the first international agreement on climate change containing obligations for all countries4. this agreement works both horizontally and vertically, as climate governance is a concern across the border and also a responsibility of every state. thus, there is a need for meaningful policy integration, despite the involvement of particular government agencies and private institutions.5 via this agreement, developed countries have emphasized on mitigation and adaptation, financial assistance, technology transfer and robust global transparency for national mitigation actions.6 the paris agreement requires all parties to regularly report their commitments through their ndc (national determined contribution), which must be evaluated every five 1 irena, r. e. (2017). accelerating the global energy transformation. international renewable energy agency, abu dhabi. 2 chu, s., cui, y., & liu, n. (2017). the path towards sustainable energy. nature materials, 16(1), 1622. 3 downie, c., & williams, m. (2018). after the paris agreement: what role for the brics in global climate governance?. global policy, 9(3), 398-407. 4 dimitrov, r. s. (2016). the paris agreement on climate change: behind closed doors. global environmental politics, 16(3), 1-11. 5 supra note 3. 6 xiang, j. y. (2020). cleantech innovations by developing countries. bu int'l lj, 38, 183. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 365 available online at http://journal.unnes.ac.id/sju/index.php/jils years. besides, all parties are obliged to impel new ndcs every five years to demonstrate their progress and expectations.7 based on the report by the intergovernmental panel on climate change (ipcc), many countries have extensive exploitation to the best of their abilities of re as an effort to mitigate climate change.8 many successful re policies in developed countries have been transplanted to developing countries with or without suitable modifications and followed to support renewables sourced electricity.9 it is pointless to dispute the position of re against fossil fuels in terms of environmental advantages, as it leads to a positive impact to reduce greenhouse gas (ghg)10 emissions.11 furthermore, re is the best tool to be used to solve climate issues,12 as re generation leads to emissions reductions in the power sector as to compare to fossil fuel.13 this indicates that one of the vital aspects of the conference of the parties 21 (cop 21),14 climate negotiations in paris was an initiative at a national level in which the municipal governments and local authorities also had to play a significant role in promoting utilisation of re technologies on a large scale. indonesia and india, a member of the tiger cub economies, has signed the historic paris agreement to the united nations framework convention on climate change (unfccc). the provisions of the paris agreement have imposed an increased burden on developing countries, including indonesia and india, to take actions on the reduction of ghgs fostering climate change. a careful look of the provisions of the paris agreement will reveal that the common principles of differentiated responsibilities and respective capabilities are retained in the agreement while developed countries still continue to take the leadership role on the 7 falkner, r. (2016). the paris agreement and the new logic of international climate politics. international affairs, 92(5), 1107-1125. 8 karim, m. e., karim, r., islam, m., muhammad-sukki, f., bani, n. a., & muhtazaruddin, m. n. (2019). renewable energy for sustainable growth and development: an evaluation of law and policy of bangladesh. sustainability, 11(20), 5774. 9 elizondo azuela, g., & barroso, l. a. (2012). design and performance of policy instruments to promote the development of renewable energy: emerging experience in selected developing countries. the world bank. 10 hereinafter referred as “ghg”. 11 manish, s., pillai, i. r., & banerjee, r. (2006). sustainability analysis of renewables for climate change mitigation. energy for sustainable development, 10(4), 25-36. 12 voice of future generations: the world future council annual report 2007 (hamburg, world future council hamburg, 2008), 8. 13 supra note 1, 11. 14 hereinafter referred as the “cop”. http://journal.unnes.ac.id/sju/index.php/jils 366 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils means of implementation.15 however, this bottom-up agreement has included provisions for all countries in the world i.e. developed, developing and least developed countries and imposes responsibilities on them to mitigate the effects of climate change.16 hence, this agreement is not like the kyoto protocol to unfccc, the provisions of which made only the developed countries responsible to take mandatory initiatives to reduce ghg. southeast asia’s largest economy and democracy is approaching a demographic shift. in the next 10 years, almost half of indonesia’s population will enter the work force. only three in 10 people will not be of working age by 2030. conventional poverty rates are declining and millions are moving into cities each year. the island nation’s labour force will surge, and with it, disposable income and energy demands. the picture is similar elsewhere in southeast asia, but while its neighbours have spent years developing clean energy options, indonesia has not negotiated a new renewable energy contract in three years. indonesia’s room for growth means it will be the largest contributor to the region’s ballooning energy demand, joining india and china as a global hotspot for power needs. indonesia, which is southeast asia’s most populous nation with more than 250 million people, expects its electricity needs to almost double in the next 10 years, tripled from 2010. but its heavy reliance on fossil fuels, the highest in the region, means it may offset the rest of the region’s positive growth toward renewable energy. similarly, in india, co2 emissions in the country are rising at a rate of 4.8% because of their fossil-fuel based energy sector. hence, although both of the countries are obliged to take actions against climate change, they are lacking to achieve their target due to ineffective regulatory framework that can support the renewable energy innovation and development. hence, to understand the regulatory measures and to recommend both the countries, the paper specifically dwells with the following objectives: 15 karim, r., karim, m. e., muhammad-sukki, f., abu-bakar, s. h., bani, n. a., munir, a. b., ... & mas’ud, a. a. (2018). nuclear energy development in bangladesh: a study of opportunities and challenges. energies, 11(7), 1672. 16 karim, r., muhammad-sukki, f., karim, m. e., munir, a. b., sifat, i. m., abu-bakar, s. h., ... & muhtazaruddin, m. n. (2018). legal and regulatory development of nuclear energy in bangladesh. energies, 11(10), 2847. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 367 available online at http://journal.unnes.ac.id/sju/index.php/jils 1. to identify the existing legal frameworks that regulate the production of renewable energy in indonesia and india. 2. to analyze whether the real options existing within the legal frameworks are consistent with country’s commitments towards the paris agreement? renewable energy development in indonesia as the fourth nation in terms of population on the planet and the biggest economy in south east asia, indonesia's energy constraints are extensive, and the government has set an objective of accomplishing power production of 56,395mw by 2028, which incorporates accelerated advancement in their energy industry.17 despite the fact that indonesia's lion share of energy originates from non-renewable energy sources, there remains space for sustainable power sources to develop. the pln electricity plan 2019 proposes that the renewable energy generation will expand up to 23 percent before the end of 2025.18 in light of indonesia's more extensive all-inclusive strategy, the administration expects that by 2050 the utilization of sustainable power source will increment to 31 percent.19 the most evolved sustainable power sources are hydropower and geothermal vitality, with an all-out introduced limit of 5,024mw and 1,403.5mw separately.20 these figures, notwithstanding, are low in examination with its absolute potential. in 2015, the improvement of the renewable power source just arrived at 2 percent of the absolute potential sustainable power sources in indonesia.21 regardless of endeavours to 17 maulidia, m., dargusch, p., ashworth, p., & ardiansyah, f. (2019). rethinking renewable energy targets and electricity sector reform in indonesia: a private sector perspective. renewable and sustainable energy reviews, 101, 231-247. 18 choi, c. s., siregar, i. z., & ravi, s. (2020). reframing the competition for land between food and energy production in indonesia. in land cover and land use change on islands (pp. 241-260). springer, cham. 19 mamat, r., sani, m. s. m., & sudhakar, k. j. s. o. t. t. e. (2019). renewable energy in southeast asia: policies and recommendations. science of the total environment, 670, 1095-1102. 20 maulidia, m. (2019). enhancing the role of the private sector in achieving transitional renewable energy targets in indonesia. 21 hakam, d. f. (2019). mitigating the risk of market power abuse in electricity sector restructuring: evidence from indonesia. utilities policy, 56, 181-191. http://journal.unnes.ac.id/sju/index.php/jils 368 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils widen the renewable energy generation, pt perusahaan listrik negara (persero) (pln) are required to accept an arrangement with independent power producers (ipps) for the new tariff approval. for a renewable energy future in indonesia, most of the experts have concluded that the below points may have added to thwarting potential interest in the improvement of sustainable power source: 1) fuel subsidies; 2) legal uncertainties; 3) a lack of incentives for the use of renewable energy; 4) a land acquisition backlog; 5) issues associated with the use of forestry areas for the development of renewable energy; and 6) a new mechanism for the determination of basic production prices as stipulated in memr 50/2017, as amended (see section iii). disregarding the administration's responsibility to upgrading the improvement of sustainable power source, there remain inquiries on how these above issues would be approached. i. the renewable energy policy in indonesia the energy policy of the government of indonesia can be found in some predetermined regulations. the energy management law listed in article 3 of the law of republic of indonesia no. 30 years 2007 set the goal of the energy management as obtaining energy independence, ensuring the availability of domestic and non-domestic sources of energy, ensuring an optimal, integrated, sustainable energy resources management, energy efficiency use, guaranteeing the access of individuals to energy, improving the capacity of domestic energies.22 chapter 1 , article 1(2), in the regulation of the minister of energy and mineral resources of the republic of indonesia number 12 of 2017, defines renewable energy sources as sustainable energy sources, for example, geothermal, wind, bioenergy, hydropower, solar, etc. presidential 22 wisaksono, a., murphy, j., sharp, j. h., & younger, p. l. (2018). the multi-level perspective analysis: indonesia geothermal energy transition study. in iop conference series: earth and environmental science (vol. 106). iop publishing. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 369 available online at http://journal.unnes.ac.id/sju/index.php/jils regulation number 27 of 2017 on the national general energy plan rencana umum energi nasional (ruen), chapter 1, article 1, paragraph 3, stated that the national energy policy should be considered as a management energy policy based on justice principles, and promote sustainable and environmental-friendly resources for securing and diversifying of national energy. the national energy policy in indonesia thus refers to the wording of the ruen policy, including the development of renewable energy. a study on the development of renewable energy and energy efficiency policies in indonesia notes that the ministry of finance of the republic of indonesia has established three pillars which provide a foundation for sustainable indonesian development: to increase resilience, to improve macroeconomic stabilization, and to enhance international competitiveness. integrated strategies for renewable energy can contribute to achieving the above.23 three different, interconnected pillars depend upon the integrated approach to renewable energy production: 1) the economic measurement of the project is sufficient, but not unreasonable, to provide an acceptable rate of return. 2) support for good investment opportunities with logical criteria should be open. 3) each pillar is interdependence, and the state of the political economy should allow investors to have faith in investment. the national energy policy has a goal to be met, i.e. the renewable energy mix is at least 23 percent in 2025 and at least 31 percent by 2050 so that renewable energy can be considered as a transitional energy source to transform indonesia into an industrialized country.24 in particular, because of its high economic benefits, the production of renewables is pushed by the indonesian government further by providing tax incentives on the investments in re.25 the renewable energy capacity in indonesia is 400 gigawatts (gw), but its usage aspect amounts to only around 8.8 gw 23 colenbrander, s., gouldson, a., sudmant, a. h., & papargyropoulou, e. (2015). the economic case for low-carbon development in rapidly growing developing world cities: a case study of palembang, indonesia. energy policy, 80, 24-35. 24 sugiawan, y., & managi, s. (2016). the environmental kuznets curve in indonesia: exploring the potential of renewable energy. energy policy, 98, 187-198. 25 id. http://journal.unnes.ac.id/sju/index.php/jils 370 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils (2%).26 this optimization of renewable energy has been regulated in national energy policy regulation 79 of 2014. the indonesian government also offers electricity subsidies to meet the community's needs. energy subsidies as forms of government action designed to reduce energy costs, increase revenue from energy producers and reduce costs paid to energy consumers. politicians also justify subsidizing energy on the grounds that it can lead to economic development, minimize poverty and ensure energy supply stability.27 nevertheless, the budget for energy subsidies in indonesia decreased by rp187.4 trillion or on average 27.0% per year in the period 2012-2015.28 in 2016, the budget for energy subsidies dropped relative to the previous year, mostly because of the decrease in the budget for fuel subsidies. fuel subsidies are given in order to control the selling price of subsidized fuel, as one of the basic needs of society, so that it can be reached by the purchasing power of the people, especially those with low incomes. since 2015, fuel subsidies are only given to certain types of fuel (kerosene, fixed subsidies for diesel oil or gas oil), and subsidies for 3 kg lpg tubes.29 then in 2017, the ministry of energy and mineral resources of the republic of indonesia allocates budget of more than rp 1 trillion for the development of renewable energy, among others for the development of solar power plant, micro hydro power plant, and provision small-scale energy in the area.30 targets in the renewable energy sector in 2017 include the addition of geothermal power plant of 215 mw, bioenergy of 314 mw, solar power plant and micro hydro power plant, and increased production target of biofuels to 4.6 million kl.31 26 shezan, s. k. a., al‐mamoon, a., & ping, h. w. (2018). performance investigation of an advanced hybrid renewable energy system in indonesia. environmental progress & sustainable energy, 37(4), 1424-1432. 27 winarno, o. t., alwendra, y., & mujiyanto, s. (2016, november). policies and strategies for renewable energy development in indonesia. in 2016 ieee international conference on renewable energy research and applications (icrera) (pp. 270-272). ieee. 28 tasri, a., & susilawati, a. (2014). selection among renewable energy alternatives based on a fuzzy analytic hierarchy process in indonesia. sustainable energy technologies and assessments, 7, 3444. 29 hidayatno, a., destyanto, a. r., & handoyo, b. a. (2019). a conceptualization of renewable energy-powered industrial cluster development in indonesia. energy procedia, 156, 7-12. 30 mustikaningsih, d., cahyandito, m. f., kaltum, u., & sarjana, s. (2019). building business performance through partnership strategy model: evidence from renewable energy industry in indonesia. international journal of energy economics and policy, 9(5), 297. 31 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 371 available online at http://journal.unnes.ac.id/sju/index.php/jils achieve these targets, the ministry of energy and mineral resources of the republic of indonesia has issued three regulations supporting the increase of renewable energy usage and also supporting the availability of electricity, ie regulation of minister of energy and mineral resources of the republic of indonesia number 10 of 2017 on principles in power sale and purchase agreement, number 11 year 2017 on utilization of natural gas for power plant, and number 12 of 2017 on utilization of renewable energy sources for the provision of electric power. ii. legal framework related to renewable energy in indonesia under the national energy policy (2014), 23% of all electricity must be procured from renewable sources of energy by 2025.32 the 2018-2027 ruptl stated a 23% renewables target by 2025.33 however, despite the increased number of ppas signed by pln this target is unlikely to be achieved by the government.34 from 2014 to 2016, tariff regulations were issued for geothermal, mini-hydro, solar, waste to energy, biomass and biogas ipps.35 wind only became subject to a regulated tariff regime in 2017.36 progress has been sluggish due to resistance from pln owing to the subsidy required to support these tariff regimes. in december 2016, the indonesian parliament rejected a proposed renewable energy subsidy to pln. in 2017, new regulations were released, capping renewables tariffs by reference to pln generation costs; this was designed to avoid a subsidy to pln from renewables development.37 32 supra note 25 33 supra note 27 34 udin, u. (2020). renewable energy and human resource development: challenges and opportunities in indonesia. international journal of energy economics and policy, 10(2), 233-237. 35 guerreiro, s., & botetzagias, i. (2018). empowering communities–the role of intermediary organisations in community renewable energy projects in indonesia. local environment, 23(2), 158-177. 36 id. 37 hidayatno, a., setiawan, a. d., supartha, i. m. w., moeis, a. o., rahman, i., & widiono, e. (2020). investigating policies on improving household rooftop photovoltaics adoption in indonesia. renewable energy. http://journal.unnes.ac.id/sju/index.php/jils 372 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils in 2017, a presidential regulation implementing the 2014 national energy policy was issued, providing the general long-term policy at the national level regarding energy management. this regulation sets out the policy and strategy on national energy management until 2050 (to be revised every five years). minister of energy and mineral resources no. 50 of 2017 (“regulation 50/2017”), took effect on 8 august 2017 and revoked the previous memr regulations no. 12 of 2017 (“regulation 12/2017”) and no. 43 of 2017. this regime applies to solar pv, hydro, wind, biomass, biogas, waste to energy, geothermal and wave and tidal. tariffs are indexed to pln’s generation costs, both locally within the relevant region and nationally. pursuant to regulation 50/2017: (i) if the local generation cost is higher than the national average, the tariff is capped at 85% or 100% of the local generation cost; and (ii) if the local generation cost is the same as or lower than the national average, the tariff will be determined by agreement of the parties. the method of procurement applicable for the different renewable energy projects (i.e. solar pv, wind, hydro, biomass, biogas and wave & tidal) under regulation 50/2017 is the direct selection method. however, for municipal solid waste and geothermal, the procurement is to be made in accordance with applicable laws and regulations. the regulation does not provide details of what is involved in a direct selection process, although it does state that pln must prepare and publish technical guidelines on the implementation of direct selection method of procurement. typically, a direct selection process in the power sector involves a competitive tender process involving a minimum of two bidders. this new tariff regime does not apply to ppas already signed, as these will be grandfathered using existing tariffs. the focus is on using renewables in regions where it can lower (or at least not increase) pln’s generation costs. the minister of energy and mineral resources (“memr”) has also issued a new regulation on the mechanism for setting pln’s bpp for particular procurement, both locally and nationally. the bpp will be set annually by memr on the basis of a proposal from pln which references the bpp from the previous year (i.e, the "bpp" for 2017 will be applied for procurement from april 2018 to march 2019). this regulation does not set out a formula or components for calculating the bpp – it merely stipulates numbers – and there is no bpp for particular energy sources. this means http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 373 available online at http://journal.unnes.ac.id/sju/index.php/jils renewables energy needs to compete with other cheaper electricity sources, such as coal, because pricing will be linked to the bpp which includes all energy sources, rather than having a specific feed-in tariff for renewable energy. memr has separately set the actual bpp of pln for 2018, which is valid from 1 april 2018 until 30 march 2019, that will be used as the reference in procurement documents during that period. the national bpp is set at usc7.66/kwh, and there are separate local bpp for different regions in indonesia. if there is any region that does not have a bpp, then the bpp will refer to the highest bpp stipulated in the minister’s decision. under presidential regulation no. 4 of 2016 on the development of electrical infrastructure as amended by presidential regulation no. 14 of 2017 (“perpres no. 4”), power projects may obtain incentives from the central and/or regional government in the form of, among other things: (i) fiscal incentives; (ii) facilities for licensing and non-licensing; and (iii) subsidies. in addition, based on mof regulation no.130/pmk.08/ 2016 on the granting of government guarantees for the acceleration of the development of electrical infrastructure (“regulation 130/2016”), there are two types of fiscal guarantee provided by the government to support acceleration of power infrastructure development. the first type is the loan guarantee for loans to pln for development of its own power infrastructure. the second type is the business viability guarantee for ipps to secure certain payment obligations of pln. in order to obtain the guarantees as mentioned above, the power projects will have to be included on a list drawn up by pln. this list is officially approved by the ministry of energy and mineral resources, and forwarded to the directorate general of risk and financing management. the government has provided: (i) income tax incentives in the form of reductions in taxable income, extended tax loss carryforward period, accelerated depreciation and amortisation rates, and dividend wht concessions; and (ii) various concessions on import duties and taxes. however, the ability of government to achieve its new renewables target may depend on the willingness of the government to provide further incentives (fiscal incentives or subsidies) to renewables developers. the requirement that smaller-scale renewable projects (other than geothermal projects) between 1 mw and 10 mw are subject to a majority http://journal.unnes.ac.id/sju/index.php/jils 374 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils domestic ownership requirement gives rise to investment viability and operational challenges for prospective foreign sponsors in these types of projects. however, the indonesian investment law (law no. 25 of 2007) does not require that an investor’s economic benefits and returns must correspond to its shareholding portion. it is therefore open to sponsors to seek to: there are various possible ways to do this (non-voting shares, preference shares, shareholder loans and service agreements, etc.), each raising different issues under indonesian law that need to be assessed and managed. electricity generation capacity of <1 mw – reserved for 100% national ownership electricity generation capacity of 1 mw-10 mw – maximum foreign ownership is 49% electricity generation capacity of >10 mw – maximum foreign ownership is 95%, or 100% during the concession period if tender is carried out through the ppp mechanism geothermal power plants less than or equal to 10 mw (open up to 67%) re-distribute the economic risks and returns from the project; and despite their 49% shareholding, exercise effective management and operational control over the project company. whilst the government’s desire to adopt a pricing structure for renewables that assists in reducing the existing average cost of generation (and in turn reducing the subsidy dependency of "pln") is laudable, it remains debatable as to whether benchmarking renewables against the cost of generation from other energy sources at a particular point in time is a legitimate comparison. in particular, this methodology, in comparing the cost of procuring renewables generation against (for example) the cost of procuring coal-fired power generation at a point in time, arguably does not take proper account of either fluctuations in fossil fuel prices (which are passed through to pln and included in the cost of generation) over time or indirect environmental costs of continued reliance on fossil fuels in the fuel mix. regulation of the minister of energy and mineral resources no.10 of 2017 on basic provisions of power purchase agreement (“regulation 10/2017”) which prescribes certain ppa risk allocation concepts that pln must follow for certain power projects was amended by minister of energy and mineral resources regulation no. 49/2017 (“regulation 49/2017”) and minister of energy and mineral resources regulation no. 10/2018 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 375 available online at http://journal.unnes.ac.id/sju/index.php/jils (regulation 10/2018). regulation 10/2017 caused much consternation in the industry, as it appears to codify certain risk allocation principles – particularly with regard to political risk and pln grid risk – that roll back safeguards that have for years underpinned the bankability of indonesian ppas. as a result, regulation 49/2017 and regulation 10/2018 were introduced to improve upon the position surrounding risk allocation principles with regards to political risks and government related force majeure for the ipps. however, there are still some concerns affecting the ipps under regulation 10/2017 which remains unchanged in regulation 49/2017 and regulation 10/2018 including the absence of deemed dispatch payments to ipps where a force majeure event affects pln’s electricity grids. regulation 10/2017 (as amended by regulation 49/2017 and regulation 10/2018) only applies to new ppas to be entered into by pln and importantly for the renewables sector does not apply to “intermittent” power generation projects (e.g. solar and wind projects), mini-hydro projects below 10 mw, biomass power projects and municipal waste to energy projects. however, regulation 10/2017 (as amended by regulation 49/2017 and regulation 10/2018) will still apply to, for example, large-scale hydro projects and geothermal projects. even though regulation 10/2017 (as amended by regulation 49/2017 and regulation 10/2018) does not apply to many ppas in the renewables sector (on the basis that these will be separately regulated), it remains to be seem how the ppa form will be rolled out by pln across these renewables sectors. to date, ppas in the smaller-scale renewables space (such as minihydro and solar ppas) have been short-form ppas that do not in any event reflect an internationally bankable risk allocation on issues such as political risk and pln grid risk. indonesian law no. 7 of 2011 on currency, together with the implementing regulations issued by bank indonesia, imposes certain currency restrictions, including that rupiah must be used to settle financial obligations within the territory of indonesia. pbi 17/3/2015 also provides that business entities must also state the price for goods and/or services only in idr. it is further clarified by sebi 17/11 that business entities are prohibited from stating the price for goods and/or services simultaneously in both idr and foreign currency (dual quotation). http://journal.unnes.ac.id/sju/index.php/jils 376 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils bpp figures are denominated in usd and idr which leaves open the possibility to denominate the tariff in the ppa in usd under regulation 50/2017 although payable in rupiah. for recent large-scale power projects, pln has accommodated sponsor and lender concerns on currency risk inherent in this arrangement by entering into a tripartite converting agreement with a local bank under which pln will guarantee the usd amount on conversion back from rupiah. however, we expect that pln may be reluctant to offer this concession for the smaller-scale renewables developments, and accordingly residual currency risks will need to be assessed and managed carefully by the sponsors. in 2012, indonesia enacted a new regulatory framework governing land procurement in the public interest. power plants and electricity transmission distribution fall within the scope of this law. the recent successful application of these regulations in the context of the central java ipp project has given renewed hope that these new laws can actually deliver large-scale infrastructure projects that would once have been incapable of development. however, another key problem in this area is the misalignment between the national and regional spatial layout plans. the government has recently introduced amendments to the spatial planning regulatory framework to accelerate amendments to spatial plans and potentially for strategic projects to proceed on the basis of their inclusion in the national spatial layout plan. nevertheless, only time will tell if these changes will in practice facilitate the issuance of local permits, such as location permits required for land acquisition, that have been held up due to misalignment between the national and regional spatial layout plans. renewable energy development in india india has great potential and resorting to harness several re sources, including solar, wind, biomass, waste and hydropower. emerging local industries for re technology manufacturing, including for solar and wind, have given substantial impact to re development and has helped uphold the country's re targets. the manufacturing industry for solar pv has been supported by small companies with a total capacity of 1.38 gw of solar http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 377 available online at http://journal.unnes.ac.id/sju/index.php/jils cells and 2.75 gw solar module integration.38 as for wind energy development is concerned, the tax-credit scheme has attracted investment, especially in terms of private sector generation. with increased generation capacities from wind farms, wind-related technologies have been improved and matured. this achievement has driven the cost-effectiveness of re based electricity, as the costs have started to drop since 2010. therefore, by embracing advanced technology, increased energy output and reduced capital costs can be accomplished.39 with a considerable portion of the population and a large percentage of rural citizens having limited access to electricity, the trend in electricity consumption is anticipated to increase hastily. industrialization and rapid economic growth have triggered the amplified scenario of electricity consumption.40 the accessibility and reliability of the electricity supply is vital for support india’s economic development and for enhancing lifestyle in the nation and has pushed the government to improve electrification.41 the government has introduced off-grid or decentralized re projects to meet the country's energy demands in rural areas.42 the government strives to achieve complete electricity access in their nation, under the eleventh plan. the effort is demonstrated by the diversity of generation, where 24.6% is gained from the states, 31.3% from the central sector, while the private sector dominated 44.1% of the generation sector.43 along with the national action plan on climate change (napcc), the government has placed steadfast steps for the development of renewable energy re. the centre government has assisted in providing incentives and embarking on support programs for the states to achieve re goals. an example is grid-interactive renewable power projects, which are mainly navigated through private investment with the 38 renewable energy’s transformation of the indian electricity landscape (india: pwc, 2015), 5. http://www.pwc.in/assets/pdfs/publications/2015/renewable-energys-transformation.pdf. 39 id., at. 6. 40 meisen, p., & quéneudec, e. (2006). overview of renewable energy potential of india. global energy network institute, 1-26. 41 apostoli, a. j. (2016). india's energy-climate dilemma: the pursuit for renewable energy guided by existing climate change policies. j. earth sci. clim. change, 7, 362. 42 distributed/decentralized renewable power projects using wind energy, biomass energy, hydropower and hybrid systems are being established in the country, to meet the energy requirements of isolated communities, and of areas which are not likely to be electrified in the near future. 43 “power sector at a glance all india,” ministry of power, http://powermin.nic.in/en/content/power-sector-glance-all-india (accessed 15 december, 2017). http://journal.unnes.ac.id/sju/index.php/jils http://powermin.nic.in/en/content/power-sector-glance-all-india 378 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils support of the ministry of new and renewable energy (mnre), but with tariff rates regulated by the state through the state electricity regulatory commissions (serc).44 therefore, reforms in the indian electricity sector will deliver significant impact to re development, not only due to the involvement of two ministries including the ministry of power and the ministry of new and renewable energy, but also the multifaceted relationship with state actors. the complexity continues through provisions under article 48a of the constitution, which signify the state’s obligation to protect and improve the natural environment.45 the paris agreement on climate change mitigation has demonstrated india’s commitment to saving the world’s climate, as india has firmly reiterated its commitment towards clean energy and reducing carbon emissions.46 more than a quarter of india’s ghg emissions were contributed by the electricity generation sector, and this figure will continually increase by more than 3000 million tons by 2030. with an increasing pattern of coal-based generation and energy demand, india is more likely to face both environmental and health issues, as there is a clear nexus between global warming and health problems.47 india’s longevity commitment has been reflected in its submitted intended nationally determined contributions (indc), a month before the paris climate accord took place. the indian government has pledged to cut emissions intensity around 33% to 35% by 2030. increasing non-fossil fuel electricity generation up to 40% by 2030.48 this target will be achieved with assistance from the green climate fund (gcf), in terms of technology transfer and finances, and increasing investments in climate change mitigation measures.49 44 “schemes”, ministry of new and renewable energy, http://mnre.gov.in/schemes/ (accessed 15 december, 2017). 45 kaladharan, m. (2016). renewable energy in india: an analysis of the regulatory environment and evolving policy trends. centre for policy research. 46 bansal, n., srivastava, v. k., & kheraluwala, j. (2019). renewable energy in india: policies to reduce greenhouse gas emissions. in greenhouse gas emissions (pp. 161-178). springer, singapore. 47 id. 48 id. 49 nationally determined contribution (ndc) to the paris agreement: india, international energy agency, https://www.iea.org/policiesandmeasures/pams/india/ (accessed 17 december, 2017). http://journal.unnes.ac.id/sju/index.php/jils http://mnre.gov.in/schemes/ https://www.iea.org/policiesandmeasures/pams/india/ jils (journal of indonesian legal studies) volume 5(2) 2020 379 available online at http://journal.unnes.ac.id/sju/index.php/jils i. legal framework related to renewable energy in india india has extensive re policies at national and state levels. environmental factors are also important in understanding one of the reasons for re deployment. the increasing re installations could result in a significant reduction of ghg emissions. several factors may have contributed to auspicious re development in the country, including technology advancement. nonetheless, an effective policy that supports re technology will be able to generate a massive difference in re's share within the country's generation mix. india has introduced a vast range of energy policies at central and state levels. among the outstanding policies are integrated energy policy 2006, strategic plan for new and renewable energy sector (2011-2017), india national policy on biofuels 2015 and comprehensive policy on decentralized (off-grid) energy generation projects based on new and renewable energy (non-conventional) energy sources 2016. the tariff policy 2006 provides financial incentives through implementing feed-in tariffs and feed-in premiums.50 apart from policies, a legal framework is undeniably crucial in regulating the electricity sector, as the broad sector covers generation, transmission and distribution divisions. a number of legislation were passed to support indian energy sector: 1) the energy conservation act 2001; 2) the electricity act 2003; 3) the damodar valley corporation act 1948; 4) the punjab re-organization act 1966; 5) the national electricity policy, plan and tariff policy; 6) the indian electricity rules 1956; 50 apart from the above-listed policies, india has also presented numerous re related policies and re targets. these include the gujarat wind power policy 2016-2021, the gujarat waste to energy policy 2016, the gujarat small hydel policy 2016, the maharashtra renewable energy policy 2015, and others. the strategic plan for the new and renewable energy sector (20112017), has outlined specific implementation plans for every re sector, including wind power, small hydro, biomass, biogas, waste-to-energy and solar pv (both on-grid and off grid). among the strategies adopted under this plan are growing financial assistance for small power plants projects for solar and biomass, enhancing the publicity for rural electrification entrepreneurs to receive banks financial aids or grant funds, and introducing other fiscal mechanisms, for instance, the risk guarantee fund. http://journal.unnes.ac.id/sju/index.php/jils 380 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils 7) the central electricity authority rules 1977; 8) the central electricity authority regulations 1979; 9) the electricity (supply) annual account rules 1985; and 10) the electrical wires, cables, appliances and accessories (quality control) order 1993. all laws and regulations have supported both electricity and renewable energy development in india. with the enactment of the electricity act of 2003, a national energy transition has been portrayed as the law has made a special remark on renewable generation. the act further authorizes the state electricity regulatory commissions (serc) to regulate matters related to the tariffs. the electricity act echoed the transparency and accountability of the electricity sector. this policy pursued india's aspirations in the energy transition towards clean energy, and further stipulated mechanisms for supporting re development, such as preferential tariffs from renewables electricity which have assisted in achieving grid parity and competitive bidding, when selling power to the distribution licensee. a year later, the national tariff policy (ntp) was created to both promote re development in india and to assist central and state regulators in tariff determination. moreover, the national action plan on climate change (napcc) has set a target for renewable energy purchase, of about 15% by 2020. apart from that, there are several central and state policies which indicate specific goals for each renewable energy source, including the biogas power (off-grid) program 2013, and the india national policy on biofuels 2015. the energy conservation act 2001 is an act that promotes energy efficiency and conservation, and is applicable throughout india, except in the states of jammu and kashmir.51 chapter ii of the act provides for matters related to the establishment of the bureau of energy efficiency and its governing structure. the act further provides the bureau’s functions, detailed in section 13, which includes promoting ee in processes, equipment and systems.52 it also provides financial aid for organisations that promote ee.53 the act also empowers the central government to enforce the efficient use of energy and its conservation through 22 listed 51 section 1 of the energy conservation act 2001 [no 52 of 2001] (india). 52 section 13 (2) (k) of the energy conservation act 2001 [no 52 of 2001] (india). 53 section 13 (2) (m) of the energy conservation act 2001 [no 52 of 2001] (india). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 381 available online at http://journal.unnes.ac.id/sju/index.php/jils measures under the same act, in consultation with the bureau.54 penalties are also served in cases of non-compliance with sections 14 or 15 of the act, where the penalty’s amount shall not exceed ten lakh rupees for each failure, and ten thousand rupees for every day during which such failures continue.55 the electricity act 2003 is comprehensive legislation regulating matters on generation, transmission, distribution, commercialization and the usage of electricity.56 the act also covers issues of the electricity industry, such as competition, consumer rights and electricity supply and electricity tariff. this act further promotes the efficient use of energy and environmental protection. up to date, no statute on re has been passed by the indian government. however, the draft of the renewable energy act 2015 has encapsulated the regulation on re development, in accordance with other principles related to climate, environment and economy. the act to be implemented is capable of limiting the use of fossil fuels, enhancing energy security, and reducing emissions intensity. this law is seen as a prevailing tool for assisting governments in carrying out national and international duties to grow the re share in the generation mix, and to combat climate change. ii. renewable energy regulatory actors in india as the world's seventh-largest country, india has a diverse regulatory body in regards to energy and electricity. this section will discuss electricity regulatory bodies only. the electricity regulatory system in india involves both central and state levels. india’s electricity sector is mainly regulated by the ministry of power. the ministry of power is in charge of matters pertaining to the below:57 54 section 14 of the energy conservation act 2001 [no 52 of 2001] (india). 55 section 26 (1) of the energy conservation act 2001, [no 52 of 2001] (india). 56 [no.36 of 2003]. the act applies in all states in india except the state of jammu and kashmir, as stated in section 1 (2) of the said act. 57 “responsibilities,” ministry of power, http://powermin.nic.in/en/content/responsibilities (accessed 17 december, 2017). http://journal.unnes.ac.id/sju/index.php/jils http://powermin.nic.in/en/content/responsibilities 382 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils 1) enacting and regulating general policies in the electric power sector and other related issues; 2) all matters relating to hydro-electric power, other than projects below a 25 mw capacity, and thermal power, transmission and distribution systems, including research, development and technical assistance; 3) regulating the electricity act 2003, the energy conservation act 2001, the damodar valley corporation act 1948, and the bhakra beas management board, as provided in the punjab reorganization act 1966; 4) all matters relating to the central electricity authority, the central electricity board, and the central electricity regulatory commission, which involve rural electrification and power schemes on central and state levels; and 5) all matters concerning energy conservation and energy efficiency in the power sector. the ministry of new and renewable energy (mnre) was established in 2006 to substitute the ministry of non-conventional energy sources. mnre is the key player which regulates all matters relating to new and renewable energy in india, assisting the country in developing renewable energy as a means of supplementing its energy requirements. several organizations are involved accordingly, including the national institute of solar energy (nise), the national institute of wind energy (niwe), the sardar swaran singh national institute of bio-energy (sssnibe), the indian renewable energy development agency (ireda), and the solar energy corporation of india (seci).58 the indian renewable energy development agency limited (ireda) is a government of india enterprise, under the administrative control of the ministry of new and renewable energy (mnre). ireda is a public limited government company, established as a non-banking financial institution in 1987. it is engaged in promoting, developing and extending financial assistance for setting up projects relating to new and renewable sources of energy, and supporting energy efficiency and conservation.59 ireda's objectives are to aid ee and re projects 58 “institutes/agencies”, ministry of new and renewable energy, www.mnre.gov.in/ (accessed 17 december, 2017). 59 “about ireda”, indian renewable energy development agency, http://www.ireda.gov.in (accessed 17 december, 2017). http://journal.unnes.ac.id/sju/index.php/jils http://www.mnre.gov.in/ http://www.ireda.gov.in/ jils (journal of indonesian legal studies) volume 5(2) 2020 383 available online at http://journal.unnes.ac.id/sju/index.php/jils financially, to be a competitive institution, and to lead in providing resourceful monetary assistance to ee and re projects. among the sectors financed by ireda is re, including hydro, wind, solar and bioenergy, and also ee and conservation.60 the central electricity regulatory commission (cerc) was established in 1998, under the electricity regulatory commissions act 1998. the state electricity regulatory commissions were also instituted under the same act. throughout the act, the government of india aims to rationalize the electricity tariff, to provide more transparent policies, and to promote efficient and environmentally-friendly policies.61 the electricity act 2003 has mandated that the cerc carry out its functions.62 these include regulating the tariff of generating companies owned by the central government and other companies. however, they are also subject to the specified clause which governs the inter-state transmission of electricity and matters connected therewith, including tariff and licenses, to settle disputes among generating companies or transmission licensees, and to impose levies for the act's purposes. cerc is also involved in specifying the grid code, and in managing the trading margin for the inter-state trading of electricity. in addition, cerc is also involved in the formulation of the national electricity policy and tariff policy, and in promoting activities in the electricity industry, including investment.63 as for the state electricity regulatory commissions, 27 state commissions are currently parked under this commission. iii. other regulatory support mechanisms in india renewable energy (re) generation is presently inferior when compared to fossil-fuel generation. therefore many countries have deployed multi-policy support mechanisms that allow for reasonable competition with fossil-fuel 60 id. 61 tamil nadu electricity regulatory commission, http://www.tnerc.gov.in/ (accessed 17 december, 2017). 62 [no.36 of 2003]. central electricity regulatory commission, www.cercind.gov.in (accessed 17 december, 2017). 63 “functions (mandate)”, central electricity regulatory commission, http://www.cercind.gov.in/function.html (accessed 17 december, 2017). http://journal.unnes.ac.id/sju/index.php/jils http://www.tnerc.gov.in/ http://www.cercind.gov.in/ http://www.cercind.gov.in/function.html 384 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils generation. india has also adopted a versatile approach on re support mechanisms, including fit, tendering systems, renewable portfolio standards (rps), and net metering. the central electricity regulatory commission (cerc) has iss ued guidelines on fit rates and implementation in 2009. according to this regulation, all re technologies are eligible for the tariff, and the review of tariff rates, which would be conducted every three years, except for solar pv and solar thermal projects.64 another important aspect in the indian fit program is the duration for tariff payment, which is approximately 13 years for all re technologies, excluding solar pv and solar thermal, as well as small hydro.65 apart from this, there are several states policies on fit for solar energy, such as the uttar pradesh renewable energy feed-in tariff 2014–2019, and the jawaharlal nehru national solar mission (phases i, ii and iii).66 some indian states have offered fit schemes for biogas and biomass projects, such as the rajasthan generic tariff for biomass and biogas plants 2014-15, the uttar pradesh captive and renewable energy tariff regulations 201415, the gujarat biomass feed-in tariff regulations 2013-2016, and also examples for wind power, such as the andhra pradesh wind feed-in tariff policy and the gujarat wind feed-in tariff. however, it was suggested that the fit rates introduced by the indian central government are not attractive, yet still able to attract investors. as auctioning and tendering systems have gained popularity in recent years, india has been actively engaged with solar auctions at the state and central levels, aligned with the country's aim to achieve approximately 100 gw solar generation by 2022.67 as of 2015, tendering systems have been extended to several states, exclusively to enhance solargenerated electricity. as of 2017, the national onshore wind capacity auction was embarked on, to boost onshore wind generation in india.68 in respect to net metering for solar pv, the states of himachal pradesh and 64 annual review for tariff rates. 65 “re tariff regulations”, international energy agency, http://www.iea.org/policiesandmeasures/ pams/ india/name-24652-en.php?s=dhlwzt1yzszzdgf0dxm9t2s (accessed 17 december, 2017). payment duration under the feed-in tariff (fit) for solar is 25 years and as for small hydro (below 5mw) is 35 years. 66 international energy agency, https://www.iea.org/policiesandmeasures/renewableenergy/ ?country=india (accessed 17 december, 2017). 67 renewable energy auctions: analysing 2016 (abu dhabi: irena, 2017), 6. 68 international energy agency, https://www.iea.org/policiesandmeasures/renewableenergy/ ?country=india (accessed 17 december, 2017). http://journal.unnes.ac.id/sju/index.php/jils http://www.iea.org/policiesandmeasures/%20%20pams/%20india/name-24652-en.php?s=dhlwzt1yzszzdgf0dxm9t2s http://www.iea.org/policiesandmeasures/%20%20pams/%20india/name-24652-en.php?s=dhlwzt1yzszzdgf0dxm9t2s https://www.iea.org/policiesandmeasures/renewableenergy/%20?country=india https://www.iea.org/policiesandmeasures/renewableenergy/%20?country=india jils (journal of indonesian legal studies) volume 5(2) 2020 385 available online at http://journal.unnes.ac.id/sju/index.php/jils rajasthan successfully implemented this approach and encouraged other indian states to adopt the same policy. as for rps or quota policies, these have been widely applied in various indian local jurisdictions.69 net metering has also been adopted by several states in india.70 all these policies support the installation of solar pv systems, and participants are permitted to sell excess solar energy to the utility company.71 other than that, india has initiated several economic instrument-based policies to accelerate re development, such as renewable energy certificates system and accelerated depreciation tax benefit, specifically for wind energy.72 comparison and concluding remarks when we compare indonesia with that of the india law, policy and power generation from renewable sources, we find that india has taken precedence over indonesia. it is perhaps because india is under pressure by the world community to reduce carbon emission in spite of the facts that india, because of its high population, has high energy demands. india has laid greater emphasis on renewable sources and atomic energy sources. so far renewable energy is concerned, india has strategized to convert miles long solid waste dump sites into pv-parks around the country. the hydropower is another renewable source of greater importance in the country. the reliance on coal-fired thermal power generation plants is still there, but india is now interested in having nuclear power generation instead. indonesia has a high potential for solar energy, but the production of electricity from this source is insignificant. coal-fired and gas-based power generation are still the primary sources of power generation. so far 69 renewable energy auctions: analysing 2016 (abu dhabi: irena, 2017), 114. 70 examples of these include the madhya pradesh net metering policy, the bihar net metering policy, the uttar pradesh, the net metering policy, the rajasthan net metering policy 2015, the odisha net metering policy, the punjab net metering policy, the karnataka net metering policy, the tamil nadu net metering, the india net metering policy, and the west bengal net metering policy. 71 “net metering”, akshay urja renewable energy february 2012 vol. 5 issue 4, http://mnre.gov.in/file-manager/akshay-urja/january-february-2012/en/44-45.pdf (accessed 1 march, 2018). 72 international energy agency, https://www.iea.org/policiesandmeasures/renewableenergy/?country=india (accessed 17 december, 2017). http://journal.unnes.ac.id/sju/index.php/jils http://mnre.gov.in/file-manager/akshay-urja/january-february-2012/en/44-45.pdf 386 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils fit is concerned, indonesian law and practice is more appreciable than india. so far, providing tax and cash incentives to renewable energy sources is concerned, are more or less are the same. the main problem in indonesia is the purchase price of electricity generated by independent power producers by renewable means is not encouraging. in india, the price plus tax and cash incentives provided are quite encouraging. in both countries, there is plenty of scopes to learn from developed countries. they also need financial and technological support to fulfil their commitments towards carbon reduction made under the paris agreement. there is one more are going mention here is that india is much ahead of indonesia with respect to energy efficiency and conservation of energy, where many companies are competing in the market. in indonesia, the position is entirely different. there are several identified areas in which indonesia can learn from india. to move forward in the energy transition, indonesia needs to have insight into the re industry and coming evolutions. this insight may be derived from the experiences of other countries, which are not different from indonesia in terms of economy, technology and geography, but yet has to perform better than indonesia in regards to re development. there are several lessons indonesia can learn from india’s re sector, namely, a specific ministry on renewable energy, which shows the government’s commitment to developing re, significant key players in supporting re development in india. these agencies exist at both central and state levels, which can enhance the transparency of each agency in its administration and avoid the arbitrary management of funds. moreover, there is a need for specific policies for each re source, as there is in india, for example, the five-year plan for national wind energy and national solar energy and the establishment of a specific organization to financially support re development, such as ireda in india. both the courtiers have to go a long way on the treacherous pathways to keep their promise to reduce carbon emission. both should further reduce their reliance on traditional sources of power generation and maximize wind, solar, hydro and biomass energy sources. india has nuclear energy and trying hard to increase its contribution to the energy-mix. india and indonesia should also seriously work on having offshore windmills and underwater turbines. these sources of energy have great potential in both countries. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 387 available online at http://journal.unnes.ac.id/sju/index.php/jils references 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(2017). accelerating the global energy transformation. international renewable energy agency, abu dhabi. kaladharan, m. (2016). renewable energy in india: an analysis of the regulatory environment and evolving policy trends. centre for policy research. karim, m. e., karim, r., islam, m., muhammad-sukki, f., bani, n. a., & muhtazaruddin, m. n. (2019). renewable energy for sustainable growth and development: an evaluation of law and policy of bangladesh. sustainability, 11(20), 5774. karim, r., karim, m. e., muhammad-sukki, f., abu-bakar, s. h., bani, n. a., munir, a. b., ... & mas’ud, a. a. (2018). nuclear energy development in bangladesh: a study of opportunities and challenges. energies, 11(7), 1672. karim, r., muhammad-sukki, f., karim, m. e., munir, a. b., sifat, i. m., abu-bakar, s. h., ... & muhtazaruddin, m. n. (2018). legal and regulatory development of nuclear energy in bangladesh. energies, 11(10), 2847. mamat, r., sani, m. s. m., & sudhakar, k. j. s. o. t. t. e. 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(2019). building business performance through partnership strategy model: evidence from renewable energy industry in indonesia. international journal of energy economics and policy, 9(5), 297. nationally determined contribution (ndc) to the paris agreement: india, international energy agency, https://www.iea.org/policiesandmeasures/pams/india/ (accessed 17 december, 2017). renewable energy auctions: analysing 2016 (abu dhabi: irena, 2017). renewable energy’s transformation of the indian electricity landscape (india: pwc, 2015), 5. http://www.pwc.in/assets/pdfs/publications/2015/renewableenergys-transformation.pdf. shezan, s. k. a., al‐mamoon, a., & ping, h. w. (2018). performance investigation of an advanced hybrid renewable energy system in indonesia. environmental progress & sustainable energy, 37(4), 1424-1432. sugiawan, y., & managi, s. 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(2016, november). policies and strategies for renewable energy development in indonesia. in 2016 ieee international conference on renewable energy research and applications (icrera) (pp. 270-272). ieee. wisaksono, a., murphy, j., sharp, j. h., & younger, p. l. (2018). the multilevel perspective analysis: indonesia geothermal energy transition study. in iop conference series: earth and environmental science (vol. 106). iop publishing. xiang, j. y. (2020). cleantech innovations by developing countries. bu int'l lj, 38, 183. about authors ridoan karim is a lecturer at the department of business law and taxation, school of business, monash university malaysia. he has taught and researched in the fields of business and international trade law. being a passionate researcher and academic, ridoan has widely published in peer-reviewed journals and presented papers in several national and international conferences in his areas of interest, i.e. ‘legal and regulatory aspects of energy’, ‘science, technology and law’, ‘privacy and data protection law’, ‘human rights law’, ‘health and medical law’, ‘legal research’, and ‘asian and comparative law’, etc. dr. farahdilah ghazali is a lecturer at universiti malaysia terengganu (umt). she obtained her phd from ahmad ibrahim kulliyyah of laws, international islamic university malaysia. she is an expert on energy law and policy & climate change. professor dr. abdul haseeb ansari is a retired academician who served more than twenty (20) years at international islamic university malaysia (iium). he is an expert on law and policy; living modified organism (lmo); marine & coastal & climate change. http://journal.unnes.ac.id/sju/index.php/jils 1 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 volume 4 issue 01 may 2019 jils 4 (1) 2019, pp. 1-6 issn (print) 2548-1584 issn (online) 2548-1592 editorial penal policy and the complexity of criminal law enforcement: introducing jils 4(1) may 2019 edition dani muhtada 1 , ridwan arifin https://doi.org/10.15294/jils.v4i01.30189 faculty of law universitas negeri semarang 1 editor in chief, journal of indonesian legal studies (jils), postgraduate program faculty of law universitas negeri semarang email: jils@mail.unnes.ac.id after the previous edition of jils raised the theme of “crimes and society: general issues on criminal law in indonesia”, in this edition jils wanted to explore various cases and developments in criminal law enforcement. the complexity of criminal law enforcement in many conditions presents a variety of debates, ranging from legality and non-retroactive principles of law which in certain cases find discrepancies between facts and existing theories. in addition, criminal law which is considered ultimum remedium and has the character of a double-edged sword, on the one hand protects the interests of victims and the public but on the other hand injures the rights of the accused, becomes very complex because of its relation to the protection of human rights. in order to provide the most up-to-date discourse in the development of criminal law enforcement, in this edition we take the theme “penal policy and the development of criminal law”. this theme provides a different perspective for readers relating to criminal law policy and formulation of jils (journal of indonesian legal studies) 2 http://journal.unnes.ac.id/sju/index.php/jils dani muhtada, ridwan arifin jils 4 (1) may 2019, 1-6 criminal law enforcement. in this edition, we received a large number of articles sent to the editorial desk, therefore it requires considerable time in choosing, reviewing and giving our best feedback and comments to the authors. to highlight the development of criminal law enforcement, this journal volume is dedicated to discuss several issues related to the penal policy and development of criminal law enforcement. ningsih, for example, discuss the idea of criminal responsibility as well as the relationship between criminal law and technology is malware product. the liability and negligence on this issue examined on two different kind of laws: criminal law and private commercial law. she emphasized that the digital transaction is run by an information system and is provided with special software that runs it. damage to computer devices and software can cause all kinds of damage. this damage can cause someone to experience damage or loss due to damaged hardware or software, one or more of the following legal areas can provide recovery, such as: contract law, technology law, consumer protection, and product liability. another article written by adegbite analyzes the law enforcement, military discipline, and the notion of military justice: building a case for the constitutional rights of service personnel in nigeria. he brought interesting issues to be studied relating to law enforcement and human rights in relation to military law in nigeria. the police and military have an important role in law enforcement, but according to him in many cases constitutional rights and basic rights are violated. he provides different discourses in the study of law, especially for the study of law in indonesia and can be compared with nigeria. sugeng wahyudi discusses about penal policy on assets recovery on corruption cases in indonesia as one of contemporary and controversial issues in indonesia. corruption and criminal law enforcement often face many problems even more so with the shifting of the motive of corruption towards the international that crosses national borders. even in some international meetings, the international community supports the inclusion of corruption as an extraordinary crime. on his paper, wahyudi emphasize that criminal law in the framework of returning state losses due to corruption in indonesia was not maximal, as evidenced by the lack of maximum or no maximum return on state losses for corruption, therefore recommendations on simplifying regulations in terms of early prevention or since in the beginning of corruption cases which caused a lot of damage to the state's financial need, there was a special formulation so that the handling could be maximized to restore state losses in corruption. 3 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 in fact, in the same study, anti-corruption, damaitu considered that corruption cases had become cases that needed special attention and treatment. he discusses about progress and decline of legal thought: excorruptor as a legislative candidate (analysis of general election commission regulation (pkpu) no. 20/2018). he argued that restrictions for ex-corruptors to become legislative candidate can trigger various human rights violations. wikan sinatrio in the development of law enforcement provides a discourse on the protection of children through restorative justice. through his article entitled the implementation of diversion and restorative justice in the juvenile criminal justice system in indonesia he proposed an alternative punishment for children who have problems with the law. he studied the implementation of restorative justice in cases relating to juvenile law in pati, central java, indonesia. he found that basically, perma ri number 4 of 2014 serves to fill the void and law enforcement for the practice of governance and the system of legislation referring to the consideration of letter b of perma ri number 4 of 2014 stated that law number 11 of 2012 on system the child criminal court has not yet clearly set out the procedures and the stage of diversion. therefore, there are some things that have not been regulated in the sppa act and then regulated in perma no. 4 of 2014, as a function of fulfilling legal vacuum and law enforcement. in line with wikan, ratri novita erdianti, sholahuddin al-fatih also studied concerning to alternative sanction for child in the context of juvenile criminal law and restorative justice. erdianti and al-fatih propose fostering or guidance for child as an alternative sanction. through their paper entitled fostering as an alternative sanction for juveniles in the perspective of child protection in indonesia confirmed that as ultimum remedium, criminal law must not be used in criminal cases relating to children. they argued that institutions that are used as a means of criminal guidance can be a type of social institution or educational institution that is adapted to the pattern of child development. thus, the effect of deterrence and development of children's competencies will be obtained at the same time. gerry mario paulus, jimmy pello, and aksi sinurat with their paper entitled the completion pattern of adultery case based on the customary law of sabunese seek another perspective on criminal law enforcement especially on customary criminal law on adultery cases. they compared the sabunese value 4 http://journal.unnes.ac.id/sju/index.php/jils dani muhtada, ridwan arifin jils 4 (1) may 2019, 1-6 on completion the adultery case. criminal law policy in traditional criminal values in the sabu people can be an alternative for the formation of national criminal law. law enforcement policy on violation of illegal cigarette circulation in indonesia (study on indonesian customs directorate general) written by cahyo baksoro indra maulana reveals many things about criminal acts in the excise sector, especially in the distribution of illegal cigarettes. his study at the semarang excise directorate showed that the implementation of law enforcement in eradicating the circulation of illegal cigarettes was still diverse and was strongly influenced by the role of the function and capacity of ppns. jils this edition also provide one article of general topic, entitled promoting the right to education through a card: a paradox of indonesia’s educational policy? by muhammad bahrul ulum and dina tsalist wildana. they explore and examine the policy of rights to education on indonesia’s educational policy. ulum and wildana emphasized that there is a paradox in the government’s educational policy on the fulfillment of human rights to education in dealing with the pip program. while educational complexities faced in remote areas cannot be hindered and it is granted not solely to students from vulnerable families. such discrepancies in programs circumstantially affirm that the government ignores the root of indonesia’s educational problems, including providing free education as its obligation to human rights. we think it is important to convey that by this year (2019) our journal, journal of indonesian legal studies has been accredited by ministry of research, technology and higher education (kemenristekdikti). jils also has been indexed by several leading indexers, both national and international such as heinonline, doaj, ipi garuda, sinta, microsoft academic search, directory of research journal indexing, google scholars and many more. this achievement is quite a happy achievement for the development of our journal, and this is inseparable from the participation of many parties, including writers and reviewers who provide many suggestions on the development of our journal. we would like to express our great thankfulness to: sudjino satroatmodjo (faculty of law unnes), rodiyah (faculty of law unnes), topo santoso (universitas indonesia), jhon aycock (peking university school of transnational law) for very valuable comments and feedbacks to our journal. 5 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 we would also like to extend my sincere gratitude to the board of editors as well as editorial team and administrative staffs of jils journal. we also express our thankfulness to apjhi (association of law journal managers in indonesia, asosiasi pengelola jurnal hukum se-indonesia) who have provided a lot of information and assistance in the quality of our journals. finally, we wish this journal edition provides you some new insights and another perspective on legal development issues. 6 http://journal.unnes.ac.id/sju/index.php/jils dani muhtada, ridwan arifin jils 4 (1) may 2019, 1-6 law quote “every society gets the kind of criminal it deserves. what is equally true is that every community gets the kind of law enforcement it insists on” — robert kennedy source: https://www.brainyquote.com/topics/law_enforcement jils (journal of indonesian legal studies) volume 6(2) 2021 307 available online at http://journal.unnes.ac.id/sju/index.php/jils research article four conditions for recognition of traditional society in the constitution and state revenue income ni ketut sari andyani1a , gede marhaendra wija atmaja2, i ketut sudantra3 1,2,3 doctoral program, universitas udayana, bali, indonesia auniversitas pendidikan ganesha, bali, indonesia  niktsariadnyani@gmail.com submitted: june 10, 2021 revised: september 11, 2021 accepted: oct 28, 2021 abstract this article is an interpretation of article 18b paragraph (2) of the indonesian constitution: four requirements for recognition of traditional societies. using sustainable tourism development as a case study, explores the important contribution of genealogical territorial participation and the limits of recognition of the role of the state in providing legal protection and traditional societies as the main coders indonesian legal thoughts amid various world legal thoughts published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 2, november 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils mailto:niktsariadnyani@gmail.com https://orcid.org/0000-0002-5450-5384 308 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils of legal pluralism. this exploration reveals four different conditions: conditions for survival, dynamic conditions, conditions in accordance with the principle of integration, and regulated by law. the fact that these conditions are so intricately interwoven poses unique challenges for academics and legal practitioners, but also provides a potential blueprint for constitutions and state revenues. keywords: law and finance; legal pluralism theory; genealogical territory territorial http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 309 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract …………………………………………………….…. 307 table of contents ……………………………..…...….…... 309 introduction ………………………………….…………….. 310 traditional society: conditions still alive ……. 318 dynamic conditions: recognition of traditional societies & customary law communities ………………………………………………….. 323 conditions according to the principle of integration ………………………………………………….. 326 conditions are regulated by law …………………. 327 conclusion …………………………..………………………. 328 references ………………………………………………….… 329 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. how to cite: adnyani, n. k. s., atmaja, g. m. w., & sudantra, i. k. (2021). four conditions for recognition of traditional society in the constitution and state revenue income. jils (journal of indonesian legal studies), 6(2), 307-332. https://doi.org/10.15294/jils.v6i2.48044 http://journal.unnes.ac.id/sju/index.php/jils https://journal.unnes.ac.id/sju/index.php/jils/article/view/48044 310 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction recognition of traditional communities has become old existing natives in state life. recognition of traditional society occurred since the 16th-17th century1. starting worldwide since international organizations, such as the ilo (1950), united nations, world bank, omp (1982) and od (1991), especially in third countries, such as in latin america, africa and asia pacific. in north america, there have been protests by native people asking for development justice. provoking the ilo and the united nations raises its generative issues in labor protection. in indonesia, it was initiated by a number of the indigenous peoples alliance of the archipelago (aman)2. academics and practitioners of law and economics are busy with the discourse on settlement of losses on state income3. this article seeks to answer important questions about the role of the constitution in supporting the recognition of traditional communities and state income, encouraging investment in tourism, and stimulating local economic growth and preserving the environment. to answer this question, this article seeks to measure the "strength" of the law on the protection of taxpayers and tax collectors, then determine the level of classification of law enforcement activities according to the indonesian national legal system with the size of the balancing fund and the structure of state income from the revenuesharing fund between the central government and the government. area. a striking finding is that there is better legal protection for 1 besse sugiswati, perlindungan hukum terhadap eksistensi masyarakat adat di indonesia,, 17 perspektif 31-43 (32) (2012). 2 azmi ar siradjudin, pengakuan masyarakat adat dalam instrumen hukum nasional, 1 yayasan merah putih sulawesi teng. 1 (2010). 3 arifki nindi achid, penyelesaian kerugian pada pendapatan negara melalui pengungkapan ketidakbenaran (suatu kajian hukum doktrinal dalam sistem perpajakan, 1 j. suara huk. 91–104 (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 311 available online at http://journal.unnes.ac.id/sju/index.php/jils investors between common law countries than civil law countries4. this methodology yields a finding: it offers better legal protection to taxpayers than the tax authorities' obligations as government implementers. the science of law and income of this third country has become the target of criticism in various fields. the imposition of taxes on the income of multinational companies in the united states5. perhaps most notably, it has been criticized for adopting a post-capitalist approach to the exchange of labor-generated commodities and the form of the nation-state resulting in a community-based critique and alternative of employment around the automation of production and the provision of basic income for employment. criticism of rights, that rights are indeterminate and regressive6. the right to control the state over natural resources as a source of livelihood for many people7. amendments result in lowering the income tax base on state government corporations (sgus)8. the author places the focus of this study in the domain of “legal pluralism paradigm” with the focal point of progressive legal studies. answer the legal problems faced, ignore the law in the context of fair, correct, beneficial, and protect the interests of the community. legal science avoids the question of whether the constitutional protection of taxpayers as a recognition of a "strong" traditional society is desirable from a tax compliance perspective. for the most part, these criticisms are well-founded. the 4 dan awrey, three projects in the new law and finance, 11 gruyter, account. econ. law 9-25 (10) (2021). 5 chantal thomas, customary international law and state taxation of corporate income: the case for the separate accounting method, 1 berkeley j. int’l l 99 (1996). 6 paul. d butler, poor people lose: gideon and the critique of right, 122 yale lj 2176 (2012). 7 satjipto rahardjo, ilmu hukum cetakan vii (2014). 8 k gopakumar, computation of taxable income of state government undertakings in india: a critique in view of the amendments in income tax law, j. indian law inst. 244-269 (244) (2015). http://journal.unnes.ac.id/sju/index.php/jils 312 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils perception of taxpayers assumes that tax collection in the management of tourist areas is quite burdensome. so far, the reciprocity of tax realization on the arrangement of supporting infrastructure in tourism areas is very minimal. likewise, the tax authorities in collecting taxes sometimes intervene by closing business operating licenses because taxpayers do not fulfill their obligations. supposedly as a form of state recognition of traditional community tax subjects, the state through the fiscal can provide tax relief, extension of payment period, whitening and warning before the execution of license revocation. however, the question of the relationship between law and state income remains very important even more so the 2008 crisis, caused by the collapse of international financial institutions in the west9. what we need is a new and better approach to frame and answer questions around the recognition of traditional societies as taxpayers, theoretical and methodological taxpayer compliance and tax authorities designed to avoid tax evasion that cloaks third countries from the perspective of law and state income. fortunately, the recognition of traditional society in the constitution that explores the relationship between law and state income continues to grow and develop. currently, scholars are asking more in-depth questions about this relationship, using broader tools to explain these questions, and applying these tools to examine broader areas of taxpayer compliance, such as: taxpayer honesty, compliance and awareness, tax mindness, tax discipline. predictably, however, the characteristics of the company represented by the size of the company (size), debt to equity ratio, profitability (roi) together have an influence on the level of taxpayer 9 dea. k raz, arisyi. f., indra, tamarind. p. k., & artikasih, krisis keuangan global dan pertumbuhan ekonomi: analisa dari perekonomian asia timur, 15 bul. ekon. monet. dan perbank. 37-56 (37) (2012). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 313 available online at http://journal.unnes.ac.id/sju/index.php/jils compliance10. has contributed to the level of fragmentation in the legal community and state income: in each region in indonesia, traditional communities with traditional village institutions, which are treated as sectors, tend to create fragmentation of interests11. investment at the customary village level will foster economic activity and the competitiveness of traditional villages. district government capacity in supporting villages is low (average local original income). this fragmentation is not necessarily a bad thing. indeed, specialization and diversity are now arguably the two greatest powers of state law and income. in the same way, this fragmentation has placed great stress on the intellectual bonds that bind this ever-expanding scientific community. the fragmentation and atomization of science into strict disciplines has reduced the substance of the law12. the scientific community wants to correct its mistakes by rejecting the fragmentary and atomistic portrait of nature and life. in particular, third country law and economics scholars, this often occurs in the neglect of the recognition of the rights of traditional communities because there is no ideal model for regulating the recognition of traditional communities by law as the fourth requirement for recognition of the indonesian constitution. one of the negative impacts of development is the neglect of the social and cultural order of indigenous peoples13. the political symptom of neglect is marked by changes in capitalist-oriented 10 muhammad rizal hani, syafrida., & lubis, pengaruh karakteristik perusahaan terhadap kepatuhan wajib pajak, 10 j. ris. akunt. dan bisnis 24 (2016). 11 i. i budiman, sudjatmiko, & komisi, pemberdayaan masyarakat, pembangunan desa, dan pembangunan kawasan perdesaan berdasarkan undang-undang desa. (2014). 12 satjipto rahardjo, hukum dalam jagat ketertiban (bacaan mahasiswa program doktor ilmu hukum universitas diponegoro) (2006). 13 mulyadi mohammad, pemberdayaan masyarakat adat dalam pembangunan kehutanan, 10 j. penelit. sos. dan ekon. kehutan. 224-234 (224) (2013). http://journal.unnes.ac.id/sju/index.php/jils 314 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils economic development policies that are a big challenge for the recognition of indigenous peoples in indonesia14. property is defined as the right to something of value that is recognized by a public authority and is justified by laws and regulations15. there is no legal recognition of the existence of indigenous communities and their territories. in a situation like this, the biggest catastrophe for traditional communities is when they face the government and capital owners who join together to run large-scale corporations to control their forests or lands, either through grtt which is considered manipulative or by means of expropriation. this process has strengthened the formation of a new accumulation circuit through land grabbing which is considered legitimate land grabs16. the urgency that plagues traditional societies is to fight back with counter-territorial efforts and resistance actions, and in the end force them to negotiate about identity, because identity boundaries are determined by land. in politics, indigenous voices are often ignored in higher social structures17. the relevance of the recognition of traditional communities to development is as taxpayers who participate in fulfilling payment obligations for the implementation of tourism activities in their genealogical territorial areas. taxes as state 14 soeryo adiwibowo iskandar zulkarnain, endriatmo soetarto, satyawan sunito, stifling of customary people political voice of recognition in political economy perspective (case study on mapur tribe lom bangka belitung, 6 sodality j. sosiol. pedesaan 24 (2018). 15 c sikor, t. and lund, access and property: a question of power and authority, 40 dev. change 1-22 (22) (2009). 16 la ito, t. rachman, nf. savitri, power to make land dispossession acceptable: a policy discourse analysis of the merauke integrated food and energy estate (mifee), papua, indonesia, 1 j. peasant stud. 1–22 (2014). 17 anak agung ayu intan parameswari i wayan widyartha suryawan, idin fasisaka, gerakan simbolik kultural masyarakat adat sengwer merespon marginalisasi terkait penerapan program nrmp di cherangany hills, kenya. 1 j. hub. inter. 1-11 (2015). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 315 available online at http://journal.unnes.ac.id/sju/index.php/jils income must still be deposited because they have become an obligation. the decline in tourism as a result of the covid-19 pandemic has brought a shift from active taxpayers to passive taxpayers. caused by the non-operation of the tourism business due to social restrictions. on the other hand, the tax authorities continue to carry out their obligations to record the number of taxpayers and intervene for orderly payments by sending warning letters and even imposing fines. traditional communities feel burdened with obligations in the midst of a disaster emergency. the state also applies relief from the extension of the payment period for the middle and lower classes, but this is not enough to cover the high number of tax debts due to the layoffs of one-third of indonesia's population. tax waivers have harmed the state's income, because the government needs an injection of operational funds in the field of accelerating virus disaster management, pre-employment incentives and social security for laid-off and laid-off workers. the first attribute is priority, which serves to determine the target for timely tax imposition for all parties. the second and third attributes are tax relief and time concessions for taxpayers who have economic difficulties. viewed from the perspective of the state's recognition of this traditional society, the hallmark of recognition is that it provides legal protection and welfare guarantees for all citizens, places the law as control over the flow of state income from the tax sector, the heart of economic democracy. it is understood that the explicit recognition of traditional communities has been regulated in article 18b paragraph (2) of the indonesian constitution. but a number of studies and studies by law and economics scholars, government, and policy makers map out the four requirements for recognition. first, the acknowledgment of being still alive introduces a traditional society that is natural in describing the function of law in compiling life in the midst of a plurality of http://journal.unnes.ac.id/sju/index.php/jils 316 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils customs, ethnicities, religions and cultures. in their community, indigenous peoples need to fulfill their daily needs, stimulate community economic regulation. however, important questions remain about why and how this legal instrument works in fulfilling the rights and obligations of traditional communities as taxpayers. second, discussing state income, a broad but theoretically testable set of hypotheses about the relationship between the use of legal instruments to "code" the fulfillment of tax obligations and the level of non-compliance with tax payments. scholars can and should test the strength and limits of this hypothesis. finally, it gives us a new blueprint for how to conduct research at the intersection of law and state income. this blueprint is based on four different, but closely related, requirements for recognition: conditions for being alive, dynamic, in accordance with the principle of a unitary state, and regulating recognition by law. this short article explores the promise and dangers of this blueprint for a new state constitution and income. this exploration is carried out through the lens of sustainable tourism development as a case study, exploring the important contribution of genealogical territorial participation and the limits of recognition of the role of the state in providing legal protection and traditional societies as the main coders of legal pluralism. however, at the same time, this case study also illustrates the potential for denying the application of this legal pluralism framework as a whole, in a context where laws and regulations are still developing, and in a situation where the relationship between law and state income is unequal due to the neglect of traditional community recognition rights. this article uses a normative legal research typology18. a process to find the rule of law, legal principles and legal doctrines in order to 18 peter mahmud marzuki, penelitian hukum (2010). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 317 available online at http://journal.unnes.ac.id/sju/index.php/jils answer the legal issues faced in order to achieve legal goals that reflect the values of justice19. analyze the legal norms that have been set by the authorized official20. the normative legal research method is needed in presenting a legal argumentation. the study of this article is based on the existence of an arrangement for the recognition of indigenous people in tourism development which is interpreted as a blurring of norms between article 26 (2) of the regional regulation of the province of bali no. 2 of 2012 concerning balinese cultural tourism with article 23 of the bali provincial regulation no. 4 of 2019 concerning desa adat21. the approach used in normative legal research is the statute approach22. the legal materials used in the preparation of this article are primary legal materials in the form of laws and statutory regulations as the main legal materials, while secondary legal materials include legal reports, legal records, and other legal papers that only have persuasive power23. primary and secondary legal materials are collected using a card system based on subject matter to facilitate analysis and concepts related to certain legal issues are recorded on the cards. as a theoretical framework in this study, the theory of legal pluralism is used24; rule of law theory 25 and the theory of justice 26. the technique of analyzing legal materials uses legal hermeneutic techniques using legal interpretation methods so that the rules meet the elements of logic and develop rational 19 bambang sunggono, metodologi penelitian hukum (2017). 20 salim hs dan erlies septiana nurbani, penerapan teori hukum pada penelitian tesis dan disertasi (2014). 21 soerjono soekanto dan sri mamudji, penelitian hukum normatif (2009). 22 abdulkadir muhammad, hukum dan penelitian hukum (2004). 23 i wayan suandi, penggunaan wewenang paksaan pemerintah dalam penyelenggaraan pemerintahan di propinsi bali, 2003. 24 ed. sally falk moore, =law as process: an anthropological approach (1978). 25 brian z tamanaha, on the rule of law: history, politics, theory (2004). 26 john. rawls, a theory of justice (1971). http://journal.unnes.ac.id/sju/index.php/jils 318 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils arguments by explaining the results of legal interpretation, legal construction and legal reasoning27. traditional society: conditions still alive the condition is still alive, that the traditional society until now still exists and its existence is found in the genealogical territorial sector. the phrase as long as it still exists in the recognition of the customary rights of customary law communities as regulated in article 18 b paragraph (2) of the 1945 constitution of the republic of indonesia can lead to the potential for multiple interpretations and become fertile ground for conflicting norms in the practice of constitutional life of the republic of indonesia, especially in the context of the relationship between power, recognition, and respect. this situation causes the recognition and respect that is intended for indigenous peoples cannot be implemented28. in connection with the substance of article 18 b of the 1945 constitution of the republic of indonesia, there is also one thing that needs to be understood through the phrase as long as it exists, namely the possibility of the emergence of new customary law communities in the future being closed. the language construction of conditional clauses in article 18 b of the 1945 constitution of the republic of indonesia also indicates the nature of norms that are difficult to apply. this is contrary to the rules of the indonesian language which must be made clear (obvious), objective 27 bernand arief. sidharta, refleksi tentang struktur ilmu hukum, cetakan kedua (2008). 28 lalu subardi, konstruksi makna yuridis masyarakat hukum adat dalam pasal 18 b uud nri tahun 1945 untuk identifikasi adanya masyarakat hukum adat, 1 j. huk. dan pembang. tahun ke 43 no. 2 april. 171 (2013). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 319 available online at http://journal.unnes.ac.id/sju/index.php/jils (objective), does not contain multiple interpretations (non-multiinterpretation) and must be applicable and must not make certain groups difficult or unlucky29. traditional society, in essence, is not oriented towards disability, backwardness. however, the orientation of traditional society lies in the belief and enthusiasm to maintain that belief as a tradition30. the existence of conditionality on the juridical status and rights of traditional communities, causes the existence of traditional communities to depend on the political will of the government. this is due to the presence of a clause 'determined by law' within the boundaries of traditional society. this clause places the traditional community in a difficult position because it is required by four conditions of recognition. as a result, if there is a violation of the rights of traditional communities, there is no legal basis that can be used to develop and implement special advocacy efforts for this group. right to development, the right to development is part of the right to development, which according to the united nations declaration on the right to development, 1986 and the 1989 ilo convention on minority groups and traditional peoples in independent countries31. the constitutional rights of traditional people should be prioritized over the rights of ordinary citizens. because traditional people are citizens who have traditional special rights. theoretically it is recognized that traditional communities as citizens of the republic of indonesia need to get protection, guarantees and legal certainty, but in reality, their fate and socio 29 jawahir thontowi, pengaturan masyarakat hukum adat dan implementasi perlindungan hak-hak tradisionalnya, 10 pandecta res. law j. 25 (2015). 30 lalu sabardi, konstruksi makna yuridis masyarakat hukum adat dalam pasal 18b uudn ri tahun 1945 untuk identifikasi adanya masyarakat hukum adat, 44 jurnal hukum & pembangunan. 170 (2014). 31 komisi nasional hak asasi manusia, mewujudkan hak konstitusional masyarakat hukum adat (2006). http://journal.unnes.ac.id/sju/index.php/jils 320 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils economic status are marginalized. to strengthen the protection for them, a special "affirmative action" is needed. that is why constitutional rights are more focused on efforts to fight for the legality of basic rights for traditional communities in the 1945 constitution, even though in its realization many are negated by the sectoral law32. with the fact that traditional communities are recognized because they still live in all areas that are part of the territory of indonesia. as legal subjects, the public also has the right to obtain welfare guarantees from the state and also pay taxes as an obligation of legal subjects. land management rights (hak pengelolaan lahan, hpl) are rights outside the loga that grow and develop in accordance with development demands. rights that have existed since the colonial era need to be formulated in a statutory regulation, so that between hpl holders and third parties who use hpl are in the corridor of legal certainty, justice and expediency. development that takes place in indonesia still requires the existence of hpl, due to limited government funds, and in the context of empowering government agencies (central) and regional governments. hpl can be a test tool for the state's right to control. has the weak economic group got a place in the existence of hpl in order to balance out the parties who always "exploit the land" namely the investors. recognition of indigenous peoples in government programs is often ignored, because it is considered to hinder government programs. whereas customary law is a source of material law that can be used in and for national development. hasn't the school of history given the view that customary law is a reflection of the indigenous cultural values of the indigenous population. even in the philosophy of law the flow of "socio-logical jurisprudence" says that a good and 32 jawahir thontowi, perlindungan dan pengakuan masyarakat adat dan tantangannya dalam hukum indonesia, 20 j. huk. ius quia iustum 21-36 (24) (2013). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 321 available online at http://journal.unnes.ac.id/sju/index.php/jils effective positive law is a positive law that is in accordance with living law33. the transition from hpl to hak guna bangunan is the land parcel that causes the most problems for both hpl holders and third parties. development sectors that take advantage of this opportunity include perumnas; industry; tourism, etc. according to the regulation of the minister of agrarian affairs number 9 of 1965, authorizing hpl holders to receive income and/or annual mandatory fees determined in accordance with the agreement, there are many cases that occur between hpl holders and third parties, there are often disputes related to this income. . for this reason, the presence of laws and regulations is so important to determine the minimum and maximum percentages for determining income. what are the standards that can be used as a benchmark for determining income money (for example, sales value of tax objects-njop). in addition, third parties are also required to pay customs for the acquisition of land and building rights (bphtb) as regulated in law no. 21 of 1997. hpl makes a positive contribution to state finances through taxes. the function of law in the development process is as a means of development. law is a means that pave the way and channel the wishes and needs of the community in the desired direction34. in the future perspective, the world will become a big village, while national boundaries will become very blurry. meanwhile the global economy follows its own logic35. for this reason, the role of the state in protecting its citizens is an important element, in addition to accommodating the changes that occur. 33 sunaryati hartono, bhinneka tunggal ika sebagai asas hukum bagi pembangunan hukum nasional (2006). 34 mochtar kusumaatmadja, pembinaan hukum dalam rangka pembangunan nasional (1986). 35 khudzaifah dimyati, teorisasi hukum. studi perkem-bangan pemikiran hukum di indonesia 1945-1990 (2005). http://journal.unnes.ac.id/sju/index.php/jils 322 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils the practice of using hpl in development in indonesia can be categorized into 3 (three) major parts, namely the use of hpl for the lower middle economic class, the use of hpl for the lower middle economic class, and the use of public facilities. land is an asset and development capital as well as non-economic. both are a unit, where on it there are humans as residents and the content of natural resources in it. indonesia is an archipelagic country consisting of 17,508 and is even dubbed the maritime continent. its entire jurisdictional area is 7.8 million km2, including a land area of 2,027,087 km236. based on the above conditions, geographically to advance the above islands, private sector participation is needed in an effort to accelerate development. one of the principles in reorganizing the bureaucracy is results-oriented government and prioritizes budgeting to finance results and not inputs. the existence of a government with an entrepreneurial spirit, which is more oriented to, not spending (spending). legal development is legal reform. in the land law, hpl must be given a place as an administrative right in the context of accelerating indonesia's development, especially in border areas, islands, and others. hpl has made many positive contributions to indonesia's development. example of tourism. as a state of material law (welfare state)37, the government together with business entities and the community, drive the government through the principle of entrepreneurship. 36 agum gumelar, kebijakan agraria/pertanahan dari perspektif pertanahan keamanan dalam konteks negara kesatuan republik indonesia, dalam brahmana adhie dan hasan basri nata menggala (penyunting), reformasi pertanahan (2002). 37 uzair fausan dan heru prasetyo john rawls, a theory of justice, cambridge: havard university press, terjemahan, teori keadilan: dasar-dasar filsafat politik untuk mewujudkan kesejahteraan sosial dalam negara (2010). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 323 available online at http://journal.unnes.ac.id/sju/index.php/jils dynamic conditions: recognition of traditional societies & customary law communities phrases in accordance with the principles of the times and the principles of the unitary state of the republic of indonesia. according to van apeldorn, law is not enough to be interpreted as a rule that binds its citizens but must have aspects of justice and other principles that are useful for protecting citizens fairly and guaranteeing legal certainty for every citizen, without exception 38. in the study of the recognition of indigenous peoples with a legal pluralism approach, indigenous peoples are positioned according to their views 39, a semi-autonomous social area is a social group that is identified and engaged in regulatory activities (laws) in which individual behavioral processes and processes of interaction within and between semi-autonomous areas affect the effectiveness of the law at a particular location and time. the existence of these two requirements in the recognition of the customary rights of customary law communities shows that indonesia adheres to weak pluralism in the categorization proposed by griffith40. weak pluralism, according to griffith, occurs when the existence of customary law communities 38 e. juanda, hukum dan kekuasaan, 5 j. ilm. galuh justisi 177–191 (2017). 39 john griffiths, memahami pluralisme hukum, sebuah deskripsi konseptual”, dalam pluralisme hukum: sebuah pendekatan interdisiplin, ed. perkumpulan untuk pembaharuan hukum berbasis masyarakat dan ekologis (2005). 40 soetandyo wignjoesoebroto et.al., untuk apa pluralisme hukum?; regulasi, negosiasi dan perlawanan dalam konflik agraria di indonesia (2011). http://journal.unnes.ac.id/sju/index.php/jils 324 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils is dependent on the state41. the dynamic requirements are in accordance with the development of society where the law has an imperative power over taxpayers to fulfill their tax obligations to traditional communities whose livelihoods depend on the tourism industry. tourism commodity is a leading asset that can develop by utilizing local labor. the transition from natural resource assets of tourist village objects to capital, the elaboration of this dynamic requirement is the process of transferring knowledge and technology that is contributed to the management of tourism areas. the perspective of academic scientific studies tries to develop a theoretical and conceptual framework that explains the logic, functions, limitations, and consequences of this dynamic recognition requirement for the existence of traditional societies. as a realization of the mandate of the constitution article 18b paragraph (2) of the indonesian constitution, the constitution introduces us to the concept of genealogical territory for the purpose of explaining how law is an absolute requirement and the dynamic nature of law is sometimes bumped into by the complexity of the legal needs of society which require adjustments and can even lead to discrepancies. in many ways, the dynamics of the recognition of traditional societies that are genealogical in nature illustrates the strength of the indigenous people found in each region in indonesia according to this concept to be fought for. however, for reasons of respect for legal pluralism, the dynamic requirement for local community recognition is based on article 18b paragraph (2) of the indonesian constitution that the dynamics of law always respects pluralism to reach a more general audience, the dynamic requirements in the substance of 41 i ketut kasta arya wijaya aa gede oka parwata, eksistensi desa pakraman dalam pengelolaan kepariwisataan budaya bali (kajian terhadap peraturan daerah provinsi bali no 2 tahun 2012 , tentang kepariwisataan budaya bali), 12 kertha wicaksana: 69-75 (72–74) (2018). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 325 available online at http://journal.unnes.ac.id/sju/index.php/jils article 18b paragraph (2) of the indonesian constitution. article 18b paragraph (2) does not provide the reader with a detailed technical explanation of how the law has helped change what was once a financially remote area into one that is rich in natural resources and is produced as a source of state income from the tax sector related to the management of the tourism industry. this explanation may continue as long as it is in accordance with the legal reality of indonesian society. genealogical territories are entities that have autonomy in independent financial management according to potential. the government should also not partially see the relationship between customary law communities and their territory from an economic point of view. the government as the executor of the right to control the state must look at these linkages holistically in terms of economic, social, cultural and spiritual aspects. the government must be able to understand the intersubjective meaning, namely the meaning created in community interaction and the emic meaning, namely the local meaning. the state develops policies to revive the economy of traditional communities through the provision of tax incentives. the procedure for providing incentives has not yet been regulated, causing legal certainty and justice for traditional communities to be difficult to obtain. the denial of the economic rights of traditional communities in the use of land rights is not in line with the basic principles of tourism development based on article 4 of law no. 10 of 2009 concerning tourism. so, the dynamic requirements become the foundation for taking legal initiatives in providing tax incentives. the state through the tax officer collects data on the number of taxpayers on the tax object. the intervention of tax collectors is reduced by incorporating tax incentive criteria into the legal substance so that it can serve as a formal legal basis for economic tax relief. http://journal.unnes.ac.id/sju/index.php/jils 326 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils conditions according to the principle of integration the third condition to be fulfilled in order to be recognized is if the traditional community unit does not interfere with the existence of the unitary state of the republic of indonesia as a political and legal entity that does not threaten the sovereignty and integrity of the unitary state of the republic of indonesia and the substance of its customary law norms is in accordance with and does not conflict with the provisions of laws and regulations. the question is what the limits of national interest in this law are. in practice when acting in the name of national interest, it is always the traditional society who has to give in. the concept of involving indigenous peoples in determining policies is still very rarely applied. especially with this provision, if a corrupt government comes to power, it is certain that the rights of traditional communities and their traditional rights will be violated. it is necessary to specify in detail what national interests must be protected. if an area is burdened with customary rights, it makes it a privilege for traditional communities to use it. this is something that is not easily accepted by districts or cities, because these areas should be used as areas to increase regional income. the tax policy does not take into account the unique characteristics of traditional society, it is suspected that it only attaches importance to certain groups and is full of the spirit of materialism. considerations for the government regarding policies that need to be formulated as an appropriate taxation scheme for traditional communities42. 42 yuyung rizka aneswari, membongkar imperialisme dalam kebijakan pajak usaha mikro kecil dan menengah (umkm, 14 infestasi 1-10 (1–2) (2018). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 327 available online at http://journal.unnes.ac.id/sju/index.php/jils large resources and capital mean for the development and improvement of tourism, capital is one of the potentials that must be utilized optimally through the implementation of tourism which in general aims to increase national income in order to improve people's welfare. economic benefits and the entry of foreign exchange for the region and the state, increase and income of the community and government. tourism also encourages the protection process of a physical and socio-cultural circle of the local community, because it is an asset that can be sold to tourists and if it wants to continue it must be maintained. therefore, to optimize the benefits and reduce the various problems caused by tourism development, good planning and good management are needed. national tourism development refers to the ideal foundation (religious values and pancasila), the constitutional basis of the 1945 constitution of the republic of indonesia which is operationally carried out by the main actors of tourism development. the tourism sector can be categorized as a source of income in several sectors that can directly provide income to state revenues sourced from taxes. the amount of income in a country or in an area can affect the population. if the population increases, the income that can be withdrawn will also increase in line with the tourism law, that tourism is shown to increase national income in order to improve the welfare and prosperity of the people. conditions are regulated by law the entrance fee for tourist areas has been regulated in the law consisting of villages and traditional villages. the largest income contribution from tourism comes from the imposition of taxes. the tourism industry has an important role in development efforts to increase people's economic income in the long term. the agrarian http://journal.unnes.ac.id/sju/index.php/jils 328 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils law and the tourism law are to be aligned in the context of central and regional relations in managing regional potential in the tourism sector with the authority possessed by traditional communities over the management of the land. the important role of law in tourism development, such as providing job protection for local communities; increase in income based on laws, court decisions, and customary law materials as sources of state income from tourism industry taxes. the principle of administering local government as regulated by law as a requirement for traditional communities to receive recognition. increasing state income from tax proceeds shows a harmonious relationship between the community, local government and lawmakers. the legal umbrella for the constitution is article 18b paragraph 2 with four requirements for recognition of traditional communities in development and accountability to citizens. the administration of government and development needs the initiative of the traditional community, the act bridges the management of the interests of the local community based on their origins and customs. the strong influence of adat on the local government system is regulated by law. conlusion with the universal recognition of traditional societies, it is natural to ask what impact the capital code has on science at the intersection of the constitution and state income. only time will tell. however, one thing that is certain is that article 18b paragraph 2 of the constitution of the republic of indonesia has laid the basis for further research exploring various forms of regulatory recognition of laws, government regulations, ministerial regulations and regional regulations which together form the national economic http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 329 available online at http://journal.unnes.ac.id/sju/index.php/jils system by adopting a balance of superstructure loads. and bottom up. becoming more critical in examining the relationship between law, finance, and inequality is a further task for law and economics scholars in the field of research and economic policy making. references adhie, b. 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(1986). pembinaan hukum dalam rangka pembangunan hukum nasional. bandung: bina cipta. marzuki, p. m. (2005). penelitian hukum. jakarta: kencana prenada media. moore, s. f. (2000). law as process: an anthropological approach. münster germany: lit verlag münster. muhammad, a. (2004). hukum dan penelitian hukum. bandung: citra aditya bakti. parwata, a. g. o., & wijaya, i. k. k. a. (2018). eksistensi desa pakraman dalam pengelolaan kepariwisataan budaya bali (kajian terhadap peraturan daerah provinsi bali no 2 tahun 2012, tentang kepariwisataan budaya bali). kertha wicaksana, 12(1), 69-75. https://doi.org/10.22225/kw.12.1.415.6975 http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.1080/03066150.2013.873029 http://dx.doi.org/10.25157/jigj.v5i2.796 https://doi.org/10.26740/jaj.v6n1.p33-51 https://doi.org/10.22225/kw.12.1.415.69-75 https://doi.org/10.22225/kw.12.1.415.69-75 jils (journal of indonesian legal studies) volume 6(2) 2021 331 available online at http://journal.unnes.ac.id/sju/index.php/jils rahardjo, s. (2006). hukum dalam jagat ketertiban (bacaan mahasiswa program doktor ilmu hukum universitas diponegoro). semarang: undip press. rahardjo, s. (2014). ilmu hukum (cetakan ke vii). bandungl citra aditya bakti. rawls, j. (1999). a theory of justice: revised edition. cambridge, massachusetts, america: harvard university press. rawls, j. (2006). teori keadilan: dasar-dasar filsafat politik untuk mewujudkan kesejahteraan sosial dalam negara. yogyakarta: pustaka pelajar. raz, a. f., indra, t. p., & artikasih, d. k. (2012). krisis keuangan global dan pertumbuhan ekonomi: analisa dari perekonomian asia timur. buletin ekonomi moneter dan perbankan, 15(2), 37-56. https://doi.org/10.21098/bemp.v15i2.61 sabardi, l. (2014). konstruksi makna yuridis masyarakat hukum adat dalam pasal 18b uudn ri tahun 1945 untuk identifikasi adanya masyarakat hukum adat. jurnal hukum & pembangunan, 44(2), 170-196. http://dx.doi.org/10.21143/jhp.vol44.no2.19 salim, h. s., & nurbani, e. (2013). penerapan teori hukum pada penelitian tesis dan disertasi, jakarta: pt. raja grafindo persada. sidharta, b. a. (2009). refleksi tentang struktur ilmu hukum: sebuah penelitian tentang fundasi kefilsafatan dan sifat keilmuan ilmu. bandung: mandar maju. sikor, t., & lund, c. (2009). access and property: a question of power and authority. development and change, 40(1), 1-22. https://doi.org/10.1111/j.1467-7660.2009.01503.x siradjudin, a. a. r. (2010). pengakuan masyarakat adat dalam instrumen hukum nasional. palu: yayasan merah putih sulawesi tengah. soekanto, s., & mamudji, s. (2009). penelitian hukum normatif. jakarta: rajawali press. suandi, i. w. (2005). penggunaan wewenang paksaan pemerintahan dalam penyelenggaraan pemerintahan di propinsi bali (doctoral dissertation, universitas airlangga). http://journal.unnes.ac.id/sju/index.php/jils http://dx.doi.org/10.21143/jhp.vol44.no2.19 https://doi.org/10.1111/j.1467-7660.2009.01503.x 332 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils sudjatmiko, b. (2014). pemberdayaan masyarakat, pembangunan desa, dan pembangunan kawasan perdesaan berdasarkan undang-undang desa. jakarta: the indonesian institute. sugiswati, b. (2012). perlindungan hukum terhadap eksistensi masyarakat adat di indonesia. perspektif, 17(1), 31-43. http://dx.doi.org/10.30742/perspektif.v17i1.92 sunggono, b. (2007). metodologi penelitian hukum. jakarta: raja grafindo persada. suryawan, i. w. w., fasisaka, i., & parameswari, a. a. a. i. (2015). gerakan simbolik kultural masyarakat adat sengwer merespon marginalisasi terkait penerapan program nrmp di cherangany hills, kenya. jurnal hubungan internasional 1(3), 1-11 https://ojs.unud.ac.id/index.php/hi/article/view/16948 tamanaha, b. z. (2004). on the rule of law: history, politics, theory. cambridge: cambridge university press. thomas, c. (1996). customary international law and state taxation of corporate income: the case for the separate accounting method. berkeley journal of international law, 14(1), 99-136. http://scholarship.law.cornell.edu/facpub/1108 thontowi, j. (2013). perlindungan dan pengakuan masyarakat adat dan tantangannya dalam hukum indonesia. jurnal hukum ius quia iustum, 20(1), 21-36. https://doi.org/10.20885/iustum.vol20.iss1.art2 wignjoesoebroto, s., et.al. (2011). untuk apa pluralisme hukum? regulasi, negosiasi dan perlawanan dalam konflik agraria di indonesia. jakarta: epistema institute. zulkarnain, i., soetarto, e., sunito, s., & adiwibowo, s. (2018). stifling of customary people political voice of recognition in political economy perspective (case study on mapur tribe lom bangka belitung). sodality: jurnal sosiologi pedesaan, 6(3), 237-245. https://doi.org/10.22500/sodality.v6i3.24325 http://journal.unnes.ac.id/sju/index.php/jils http://dx.doi.org/10.30742/perspektif.v17i1.92 https://ojs.unud.ac.id/index.php/hi/article/view/16948 http://scholarship.law.cornell.edu/facpub/1108 https://doi.org/10.20885/iustum.vol20.iss1.art2 https://doi.org/10.22500/sodality.v6i3.24325 101 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 volume 2 issue 02 november 2017 jils 2 (2) 2017, pp. 101-112 issn 2548-1584 e-issn 2548-1592 recognition of customary disputes settlement in law number 6 of 2014 on villages: a responsive law review in indonesian legal reform winarsih 1 winarsih postgraduate program, faculty of law, universitas indonesia  winarsih.winnn@gmail.com article info abstract submitted on april 2017 approved on september 2017 published on november 2017 based on the development of the community's need for legal certainty on customary dispute settlement, law no. 6 of 2014 on village which gives authority to adat villages to resolve customary law dispute prevailing in adat village as long as it is in harmony with the principle of human rights by prioritizing the settlement by deliberation. in addition, adat villages are also given the authority to carry out an indigenous village justice peace trial. this normative recognition authorizes adat villages to apply the values or norms that have been lived and developed in the community closely related to the responsive law proposed by philippe nonet and philip selznick stating that responsive law is born from legal realism in society so that it appears laws that are more responsive to social needs (arinanto, 2004, 117). this paper discusses adat dispute resolution in law no. 6 of 2014 on village in the review of responsive law in indonesian legal reform. keywords: responsive law, customary dispute settlement, legal reform, adat village 1 thanks to editorial boards of journal of indonesian legal studies (jils), postgraduate program, faculty of law, universitas negeri semarang mailto:winarsih.winnn@gmail.com 102 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang winarsih jils 2 (2) november 2017, 101-112 http://journal.unnes.ac.id/sju/index.php/jils introduction in various political regimes, especially the political regime of the new order, indigenous peoples are one of the most pressing groups of government, including the social order and customary law threatened by state law. whereas in the sociological perspective the presence of customary law is a natural process that comes along with the development of social order built in its own society. the law is the resultant of the whole struggle of relations in society. 2 one form of pressure from state law is that it is not uncommon for cases that have been resolved customarily by the community to be reprocessed by law enforcement officials if either party reports or feels dissatisfied as in the case of no. 1/1956/pdt dated july 30, 1956 namely the case of land disputes that have been settled through the village session but filed back to court. 3 this is due to the weakness of the legal status of the decision of the trial conducted by the village on the settlement using customary law mechanism. in addition, the destruction of local autonomous institutions that have been the main pillar of the functioning of social processes in society is also carried out by the state or government by using various regulations. it shows that only laws and regulations that can be a means of social engineering to deliver the people of indonesia to achieve prosperity, prosperity and justice. the government does not believe the customary law is able to bring the community to the national ideals. 4 whereas there is a tendency that indonesians are better suited to using a persuasive and accommodative judiciary based on living values in society through non-litigation courts. this shows that people prefer to finish the case in a peaceful way using the principle of kinship and harmony of life. this mechanism uses peer-to-peer testimony, neighbors conducted in front of village peace judges with simple administration completed in arbitrator or intermediary dispute mediation with regular administration through living or community law or customary law. 5 in its development, recognition of indigenous and tribal peoples is implied in the explanation of article 67 paragraph (1) of law no. 41 of 1999 2 bernadinus steni, hukum progresif, pruralisme hukum dan gerakan masyarakat adat” on book, satjipto raharjdo dan hukum progresif urgensi dan kritik (jakarta: epistema institute, 2011) 263-267. 3 ilman hadi “kekuatan hukum putusan adat” retrieved from http://www.hukumonline.com/index.php/klinik/detail/lt4fbb44750563e/kekuatanhukum-putusan-adat on october 17, 2016 4 satjipto rahardjo, membedah hukum progresif (jakarta: buku kompas, 2006) 175. 5 tedi sudrajat, “aspirasi reformasi hukum dan penegakkan hukum progresif melalui media hakim perdamaian desa”, jurnal dinamika hukum vol. 10 no. 3 september 2010, 294 http://www.hukumonline.com/index.php/klinik/detail/lt4fbb44750563e/kekuatan-hukum-putusan-adat http://www.hukumonline.com/index.php/klinik/detail/lt4fbb44750563e/kekuatan-hukum-putusan-adat 103 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 on forestry. specifically related to the agrarian law in indonesia article 5 of law no.5 of 1960 on the basic regulation of agrarian principles. the law provides space for indigenous peoples to apply the law, but has not yet given widespread authority to resolve cases through customary law. based on the development of the community's need for legal certainty over customary dispute settlement, law no. 6 of 2014 on the village which gives authority to adat villages to resolve customary law dispute prevailing in traditional villages provided that it is in harmony with the principle of human rights by prioritizing the settlement by deliberation. in addition, adat villages are also given the authority to carry out an indigenous village justice peace trial. 6 this normative recognition authorizes adat villages to apply the values or norms that have been lived and developed in the community closely related to the responsive law proposed by philippe nonet and philip selznick stating that responsive law is born from legal realism in society so that it appears laws that are more responsive to social needs. based on the fact that there is a legislation that recognizes and empowers adat villages to resolve disputes and execution of village assemblies, the decision form generated through indigenous settlement mechanisms has the force of law. in addition, villages are given the authority to explore the value and meaning of justice contained within the community itself. therefore, the law has a close relationship with the implementation of responsive law. based on that, the writer is interested to discuss about “responsive law review to recognition of indigenous dispute resolution in law no. 6 year 2014 about village” in this writing. background of the recognition customary dispute settlementt on law no 6 of 2014 concerning to villages law is a set of rules or norms that have the power of sanctions that its implementation can be enforced by state or state organizers. in this case the law contains a set of rules that regulate most of the human life created to protect the values that live in society or customs that apply. based on that law should meet the basic value include justice, certainty and legal benefits for the community. 7 but in reality it is not so. customary law which is declared as the main source in the formation of national law and judged as a law that is close to the justice of society is increasingly unclear position and function in the formation of national law, there is even the impression of a systematic effort to assert the existence of customary law that would eliminate existence customary law 6 see art. 103 point d dan point e jo art. 19 (a) law no 6 of 2014 concerning village 7 tedi sudrajat,op.cit,. 293. 104 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang winarsih jils 2 (2) november 2017, 101-112 http://journal.unnes.ac.id/sju/index.php/jils itself. 8 it causes the justice desired by the community more difficult to be realized. furthermore, in relation to justice in the judicial system in indonesia to realize justice can be pursued through law enforcement. law enforcement is seen as an activity for realizing legal wishes to become reality in order to realize basic values within the law. the main problem is that law enforcement is always bound by interest factors, both in terms of human and institutional. therefore, to get the basic values of the law, it is natural that the community is given the choice of choice in the settlement of disputes through litigation and non-litigation. 9 the litigation path is pursued through a formal court mechanism. while non-litigation paths can be pursued through out-of-court settlements that typically use values that live within the community. the out-of-court settlement is still alive and well preserved and developed within the community, especially in indigenous communities. in connection with this, indigenous peoples have customary law that has a distinctive style, in contrast to the pattern of western law. traditional law is traditional but dynamic, referring to its orthodoxy to the line of cultural continuity of the nation and its ability to adapt to the times and with unique or distorted cases. 10 furthermore, in indonesian society, the settlement of disputes using the peaceful path cannot be separated from the conception of society which regards the regret and the bad reputation as an element of customary violation. in indonesia's most cosmic traditional mind, the most important thing is the creation of a balance between the world of birth and the unseen world, between the community and the individual and between joinder with society in general. 11 the settlement is conducted by indigenous peoples within the village. in indonesian law the settlement of various disputes or offenses settled by adat villages is basically not expressly recognized in positive law. although the recognition of customary law is contained in the forestry law and the basic agrarian law, it is not in the context of solving the problem broadly. the above matters resulted in the decision power generated by customary village court mechanisms having weak legal standing as in the case of dispute resolution no. 1/1956/pdt dated 30 july 1956 which results of the decision of the village trial may be brought back into the trial and the district court overturned the decision of the village trial. this is due to the absence of an explicit recognition which gives authority over customary villages to resolve disputes within the indonesian legal system. however, in the current 8 satjipto rahardjo, membedah hukum progresif (jakarta: buku kompas, 2006), 174 9 tedi sudrajat, op.cit,. 293 10 nurul elmiyah, rosa agustina, erman rajagukguk, hukum adat dalam putusan pengadilan (jakarta: lembaga hukum ekonomi fakultas hukum universitas indonesia, 2007), 9. 11 tedi sudrajat, op.cit, 295 105 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 legal development, adat villages are given the authority to resolve disputes and criminal acts through customary law. 12 if analyzed by the legal choice of the community to resolve the customary law or settlement informally then the community's choice of informal dispute resolution mechanism is not only due to the cheap, quick and easy mechanism. but a more important aspect is the adherence of citizens to an approach that provides a sense of order and tranquility within themselves and their communities. 13 therefore, law which gives written authority for customary villages to resolve cases and conduct village meetings in accordance with customary law. if viewed from the background of giving authority to adat village to resolve the dispute and conduct the village session independently then in this case there are two main principles underlying. 14 first is recognition of the right of village origin. article 18 of the 1945 constitution, for example, emphasizes this recognition perspective, which recognizes the existence of special areas and a number of 250 legal community units that have their original names and compositions. uu no. 32 of 2004 also gives recognition of authority or right of village origin, although its translation not too clear. law no. 11 year 2006 on aceh government also recognizes and even restores the position of mukim which formerly only a customary institution into a governmental unit located in the middle of the district and village (gampong). second is the principle of subsidiarity, namely the localization of authority over the village and local decision-making on behalf of the local community. with subsidiarity local-scale affairs are decided locally with village authorities, and local issues are also resolved locally. subsidiarity contains the spirit of appreciating, trusting and challenging the village to move. without subsidiarity, local village initiatives will be difficult to grow. indigenous peoples in indonesia actually have a long experience in the practice of subsidiarity. the main examples are customary court or local dispute resolution in aceh. the first adat justice is done at the village level and if not completed it is only brought up to the mukim level. this mechanism of subsidiarity is similar to that of the modern judicial mechanism in indonesia, starting from a district court (at the district or city level), if not resolved recently brought up to the high court (provincial) level and finally on the supreme court appeal level. 15 meanwhile, if viewed from the characteristics of the people of indonesia, the settlement of disputes with peace is a cultural value owned by 12 see article 103 letter d and letter e jo article 19 sub-article a of law no. 6 of 2014 concerning villages that grant authority over adat villages to resolve disputes and conduct village assemblies. 13 this is one of the statements from the religious figure of ambon, maluku province, on laporan penelitian kekuatan dan kelemahan peradilan non-negara, 38. 14 see academic manuscript act no. 6 of 2014 on the village that became the guidelines and the basis of the act stipulated. 15 ibid, 83 106 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang winarsih jils 2 (2) november 2017, 101-112 http://journal.unnes.ac.id/sju/index.php/jils the people of indonesia since the first. this is stated also by daniel s. lev that indonesian legal culture in resolving conflicts has its own characteristics that are caused by certain values. compromise and peace are values that gain strong support from society. 16 based on the above paradigm, the perspective of village arrangement in the future should at least be able to answer the question of why the paradigm that is the basis of the regulation of the village is to provide the basis for independence, meaning that providing a strong foundation towards the establishment of a self-governing community is less viable. 17 associated with the existence of village in nkri hence there is recognition about existence of unity of indigenous people based on their origin right. 18 based on this, the recognition of the settlement by the adat village was born. in addition, adat villages are also given authority to organize village sessions as set forth in article 103 of law no. 6 year 2014. the article can clearly be used as legal basis for indigenous and tribal peoples to maintain and apply the values and laws that are still alive and growing in society. review of responsive law on recognition of customary dispute settlement based on law number 6 of 2014 concerning to village recognition of the settlement of disputes under which the customary village's authority to conduct village councils and customary settlement gives people the freedom to develop and preserve what is in the community. this can facilitate the realization of justice because the settlement is done by deliberation and consensus in accordance with the will of the parties and the values that have been agreed. it is closely related to the culture of indonesian society and the legal products and democratic system adopted by the state of indonesia. furthermore, based on the background and study why law no. 6 year 2014 was born then this is closely related to the responsive law. 19 indonesia itself as a democratic country should have a responsive legal product. the responsive legal development strategy will result in responsive laws against the demands of the various social groups of individuals in their societies. thus responsive legal products are legal products that reflect a sense 16 tedi sudrajat, op.cit,. 297 17 see academic manuscript of the formation of law no. 6 year 2014 on the village which became the guidance of the birth of the regulation on village and custom village along with the customs and rights that are still inherent in the community. 18 see article 18 b of the 1945 constitution of the state of the republic of indonesia. in this article it states that the state recognizes and respects customary law and its traditional rights as long as it is alive and in accordance with the nkri principle. 19 responsive law is a continuation of modern theory. according to jerome frank this is the intent of the realists to make the law more responsive to social needs so that legal reasoning includes knowledge of the social context. 107 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 of justice and meet the expectations of society. in the making process is participatory, ie through individual social groups in society. when viewed from the function of the character responsive law is aspirational is to contain materials that in general in accordance with the wishes of the people it serves. 20 in relation to responsive law in village legislation it can be seen clearly that customary villages are authorized to: 21 1. arrangement and implementation of governance based on original arrangement. 22 2. arrangement and management of ulayat or custom territory.23 3. preservation of social cultural values of indigenous villages. 4. settlement of adat dispute based on customary law applicable in adat village in areas that are in harmony with the principle of human rights by prioritizing the settlement by deliberation. 5. implementation of an indigenous village court peace trial. 6. maintenance of tranquility and public order of indigenous villages based on customary law prevailing in desa adat, and 7. development of customary law life in accordance with the socio-cultural conditions of indigenous villages. the article is a form of recognition and respect for existing villages in accordance with their diversity, providing clarity of status and legal certainty to bring about justice for all indonesian people. in addition to preserving and promoting the customs, traditions and culture of the community and encouraging initiatives, movements and participation of villagers to develop the potential to achieve common prosperity, improve socio-cultural resilience of rural communities in order to realize rural communities capable of maintaining social unity. 24 in addition, in the formulation of law no. 6 of 2014 is based on academic texts consisting of experts using historical rationale, contextual philosophical thinking, juridical thinking and sociological and psychopolitical thinking. 25 the urgency of the academic texts in the process of formulating village regulations is, among other things, a real medium for community participation in the process of formation of village regulations, academic texts describing the reasons, facts and background on matters that 20 krishna d. darumurti, “pengaturan tentang daerah otonom: pusaran politik hukum status quo penguasa”, jurnal ilmu hukum refleksi hukum, october 2010, 201 21 see article 103 letter a through letter e juncto article 19 letter a law no. 6 of 2014 on village 22 what is meant by the original structure is a system of customary village life organization known in their respective territories. 23 what is meant by ulayat or adat territory is the living area of a customary law community. 24 this is the objective of establishing the village law contained in article 4 of law no. 6 of 2014. 25 see academic manuscript of law no. 6 of 2014 108 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang winarsih jils 2 (2) november 2017, 101-112 http://journal.unnes.ac.id/sju/index.php/jils encourage the formation of a problem or problem so it is very important and urgently arranged in village regulations. 26 psycho-politically this law was born because of the demands of the village government association and the representative body which always demanded better prosperity. if it is sociologically reviewed then the establishment of the law to create a just and prosperous society as mandated in the preamble to the 1945 constitution and to repair the social, economic and political damages of the village. 27 from the review of the background, objectives, substance and community participation in the process of making law no. 6 of 2014, this act is closely related and contains values in responsive law proposed by philippe nonet and philip selznick, namely by recognizing customary law and mechanism settlement by customary villages. the responsive law itself assumes that the law should provide something more than just a legal procedure. the law must be competent and fair should also be able to recognize the public will and be committed to the achievement of substantive justice. 28 in addition, the responsive law is a tradition of the realists (legal realism) and sociological (sociological jurisprudence) which has one main theme is to open the barriers of legal knowledge. responsive law search is an ongoing effort by modern legal theory. the responsive law seeks to overcome the dilemma between integrity and openness, a responsive institution retains strongly the essentials of its integrity while still observing or accounting for the presence of new forces within its environment. to do this the responsive law reinforces the ways in which openness and integrity can support each other despite the clash between them. 29 responsive law regards social pressures as a source of knowledge and an opportunity to self-correct. therefore, it needs guidance in the form of objectives, these goals set standards to criticize established actions and hence open opportunities for change. at the same time, if it is truly a goal guide it can control administrative discretion, thereby reducing the risk of institutional overruns. conversely, the absence of goals is rooted in rigidity and opportunism. responsive law assumes that goals can be made quite objective and powerful enough to control the making of adaptive rules. 30 as has been pointed out by the responsive legal theory that responsive law accommodate societal values that favor pro-demands and justice 26 yurika maharani, ibrahim, i nengah suharta, sistem pembentukan peraturan desa berdasarkan undang-undang nomor 6 tahun 2014 tentang desa. (nd), 3 27 see academic manuscript of law no. 6 of 2014 28 philippe nonet dan philip selznick,. op.cit., 117-118 29 ibid, 120 30 luthfiyah trini hastuti, studi tentang wacana hukum responsif dalam politik hukum nasional di era reformasi, thesis postgraduate program universitas sebelas maret surakarta, 2007, 27 109 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 contained in legislation and policies issued by the authorities. the responsive nature implies or means that responsive law is useful to society. the type of responsive law according to a. mukhtie fadjar has two prominent features, namely: a) shifting emphasis from rules to principles and objectives; and b) the importance of populist character, both as a legal objective and a means of achieving it. 31 meanwhile, according to philippe nonet and philip selznick responsive law has the following characteristics: 32 1. the dynamics of legal development increase the authority of purpose in legal reasoning. 2. the purpose of making legal obligations more complicated, thus loosening the legal claims and opening up the possibility of a law that is not too rigid and more civil perceptions of the public order. 3. if the law gains openness and flexibility, legal leaders take on the political dimension resulting in pressures that help improve and change legal institutions but also threaten to reduce national integrity. 4. in the depressed state the sustainability of the authority of the legal objectives and the integrity of the legal order depends on the form of more competent legal institutions. more wises the flow of responsive law, which basically states the validity of the law is based on substantive justice and rules are subject to principles and wisdom. it means that the visible morality is the morality of cooperation, while the legal and political aspirations are in an integrated state. here disobedience is judged in terms of substantive losses and is seen as a growing problem of legitimacy. opportunities for participation are expanded through the integration of legal aid and social assistance. 33 in addition, this responsive law is also a search for implicit values in various rules and policies. in the legal context in indonesia the responsive law theory proposed by nonet and selznick was then widely adopted and developed by satjipto rahardjo, 34 but he did not directly take what nonet and selznick delivered in his responsive theory. he gave different terms about responsive law that is progressive law, but expressly argued that progressive law has a responsive type. 35 31 muhammad suharjono, “pembentukan peraturan daerah yang responsif dalam mendukung otonomi daerah”, dih, jurnal ilmu hukum, february 2014, vol. 10, no. 19, 31 32 philippe nonet dan philip selznick,. op.cit, 122 33 agus budi susilo, “penegakan hukum yang berkeadilan dalam perspektif filsafat hermeneutika hukum: suatu alternatif solusi terhadap problematika penegakan hukum di indonesia”, jurnal perspektif volume xvi no. 4, 2011, september, 220 34 satjipto rahardjo is a professor of law sociology. he sparked the idea of progressive law as a legal lantern for the indonesian nation and consistent to build law from a social base. his ideas are expressed in a wide variety of articles and books used to pioneer progressive law into the public sphere and influence law enforcement, activists and academics. 35 luthfiyah trini hastuti, op.cit,. 30. 110 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang winarsih jils 2 (2) november 2017, 101-112 http://journal.unnes.ac.id/sju/index.php/jils he argues that legal reform begins with a comprehensive, basic, rapid, and drastic deconstruction of the law as discourse in the type of progressive law. at the theoretical level, the deconstruction of the law was done by restoring the development strategy in indonesia as mandated by the founders of the republic, namely to make the living law that existed in the heart of the pluralistic nation of indonesia as the main source of legal development. 36 progressive law extends the legal content that responds to the human ideal and ideal of happiness. culture itself is none other than indonesia which according to progressive law is very different from the introduction of modern law that enters and influenced indonesian law. modern law is realized impossible to be abolished but it needs to be given the spirit of life of indonesian culture to become an indonesian law. the law is like the conscience of the people so that the law is responsive, namely the law based on the culture of society itself. 37 progressive law departs from the empirical reality of the workings of law in society in the form of dissatisfaction and concern for performance and quality and law enforcement in indonesia at the end of the 20th century. in this context the law is only used as a means of guaranteeing and preserving human needs. 38 in its enforcement itself progressive law is a concept whose assumptions are full of views from the social approach to law. according to satjipto, progressive law enforcement must go on two dimensions: first is that its legal functionaries should be communal rather than liberal. in addition must also consider the interests and integrity of the nation rather than playing with articles, doctrines and procedures. second is the rise of academics, scientists and theorists who are able to free themselves from the philosophical doctrine of liberal law. 39 conclusion the background of the recognition of customary dispute resolution contained in law no. 6 of 2014 is based on two principles namely: first, recognition of the right of village origin. second is subsidiarity, ie localization of authority over villages and local decision-making on behalf of the local community. in addition psycho-politically this law was born because of the demands of the village government associations and the representative body which always demands better welfare. 36 ibid,.33. 37 a. sukris sarmadi, “memberikan positivisme hukum ke ranah hukum progresif (studi pembacaan teks hukum bagi penegak hukum)”, jurnal dinamika hukum, vol. 12 no. 2, may 2012,.335 38 suteki, “rekam jejak pemikiran hukum progresif satjipto rahardjo” dalam buku satjipto rahardjo dan hukum progresif, urgensi dan kritik, (jakarta: epistema institute, 2011) 34. 39 rikardo simarmata, “socio-legal studies dan gerakan pembaharuan hukum”, jurnal digest law, society & development, volume i desember 2006-maret 2007, 7. 111 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 a responsive legal review of the recognition of the settlement of disputes by customary villages in law no. 6 of 2014, when analyzed closely with the responsive law contains materials that are generally in accordance with the wishes of the people it serves. it can be seen from the background based on the principle of recognition and subsidiarity, the one of which is to preserve and promote the customs, traditions and culture of the community and encourage the initiative, movement and participation of the village community. in addition, in terms of substances contained in article 103 and community participation in the process of making the village law. recognition of customary dispute settlement as set forth in law no. 6 of 2014 should be utilized by the public and law enforcement apparatus to truly realize responsive laws and be used as a means to achieve community justice. the government in this case the legislator should create more responsive legal products in the legislation system in indonesia. it aims to provide justice easily and quickly, especially some of the laws that apply in indonesia is a legal product of the colonial country. bibiliography books elmiyah, nurul, rosa agustina, erman rajagukguk. hukum adat dalam putusan pengadilan. jakarta: lembaga hukum ekonomi fakultas hukum universitas indonesia, 2007. nonet, philippe dan philip selznick. “law and society in transition: toward responsive law” dalam satya arinanto politik hukum 2. jakarta: pascasarjana fakultas hukum universitas indonesia, 2004. rahardjo, satjipto. membedah hukum progresif. jakarta: buku kompas, 2006. steni, bernadinus. “hukum progresif, pruralisme hukum dan gerakan masyarakat adat” dalam buku satjipto rahardjo dan hukum progresif urgensi dan kritik. jakarta:epistema institute, 2011. suteki. “rekam jejak pemikiran hukum progresif satjipto rahardjo“ dalam buku satjipto rahardjo dan hukum progresif urgensi dan kritik. jakarta: epistema institute, 2011. journal, thesis darumurti, krishna d. “pengaturan tentang daerah otonom: pusaran politik hukum status quo penguasa”. jurnal ilmu hukum refleksi hukum october, 2010. hastuti, luthfiyah trini. studi tentang wacana hukum responsif dalam politik hukum nasional di era reformasi, thesis postgraduate program, universitas sebelas maret surakarta, 2007. maharani, yurika, ibrahim, i nengah suharta, sistem pembentukan peraturan desa berdasarkan undang-undang nomor 6 tahun 2014 tentang desa.(nd). 112 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang winarsih jils 2 (2) november 2017, 101-112 http://journal.unnes.ac.id/sju/index.php/jils sarmadi, a. sukris. “memberikan positivisme hukum ke ranah hukum progresif (studi pembacaan teks hukum bagi penegak hukum)”. jurnal dinamika hukum, vol. 12 no. 2, may, 2012. simarmata, rikardo. “socio-legal studies dan gerakan pembaharuan hukum”, jurnal digest law, society & development. volume i desember 2006-maret 2007, 2007 sudrajat, tedi. “aspirasi reformasi hukum dan penegakkan hukum progresif melalui media hakim perdamaian desa”, jurnal dinamika hukum vol. 10 no. 3 september, 2010. suharjono, muhammad. “pembentukan peraturan daerah yang responsif dalam mendukung otonomi daerah”. dih, jurnal ilmu hukum, february, vol. 10, no. 19, 2014 susilo, agus budi. 2011. “penegakan hukum yang berkeadilan dalam perspektif filsafat hermeneutika hukum: suatu alternatif solusi terhadap problematika penegakan hukum di indonesia”. jurnal perspektif volume xvi no. 4, september, 2011 laws and regulations undang-undang no 6 tahun 2014 tentang desa undang-undang no. 11 tahun 2006 tentang pemerintahan aceh undang-undang no. 32 tahun 2004 tentang pemerintah daerah undang-undang no. 41 tahun 1999 tentang kehutanan undang-undang no.5 tahun 1960 tentang peraturan dasar pokok-pokok agraria online ilman hadi “kekuatan hukum putusan adat” diakses dari http://www.hukumonline.com/index.php/klinik/detail/lt4fbb4475056 3e/kekuatan-hukum-putusan-adat pada 17 oktober 2016 others academic manuscript, naskah akademik undang-undang no 6 tahun 2014 laporan penelitian berjudul kekuatan dan kelemahan peradilan non-negara http://www.hukumonline.com/pusatdata/detail/254/node/572/uu-no-41-tahun-1999-kehutanan http://www.hukumonline.com/index.php/klinik/detail/lt4fbb44750563e/kekuatan-hukum-putusan-adat%20pada%2017%20oktober%202016 http://www.hukumonline.com/index.php/klinik/detail/lt4fbb44750563e/kekuatan-hukum-putusan-adat%20pada%2017%20oktober%202016 jils (journal of indonesian legal studies) volume 5(2) 2020 449 available online at http://journal.unnes.ac.id/sju/index.php/jils review article bridging the gap between cultural relativism and universality of human rights: indonesia attitudes cekli setya pratiwi the institute of human rights and peace studies, mahidol university law faculty university of muhammadiyah malang  c.s.pratiwi@gmail.com submitted: june 9, 2020 revised: august 28, 2020 accepted: october 24, 2020 abstract debates on the universality of human rights and cultural relativism seem to be eternal and will continue to exist as societal dynamics bring different views, concepts, and understandings of human rights and culture. however, it cannot be denied that modern international human rights law which is currently being referred to and adopted by the international community, still creates gaps in the protection of human rights. meanwhile, the development of cultural relativism in the 20th century is quite successful in bridging the gap between the two and contributing positively to the implementation of international human rights law at the domestic level. nonetheless, the cultural relativism approach presents critiques and challenges. by using various secondary resources, this paper begins with the concept of, debates between, and challenges of cultural relativism and universality of human rights. the paper indicates that the contribution of cultural relativism can be seen from building tolerance and protection of communal rights, the nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue 2, november 2020 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils mailto:c.s.pratiwi@gmail.com https://orcid.org/0000-0003-3848-1113 450 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils rights of marginal groups, and the optimization of domestic law when dealing with some competing’s rights. this is a good opportunity to reduce discriminatory actions against marginalized groups for maintaining tolerance and harmony in a plural society. the effectiveness of the application of "margin appreciation" in europe should be the best practice to actualize "asian values" or "african values" in formulating the concepts of "public morality" or "public order" clearly and precisely. the cultural relativism approach may not be used by a government to justify any human rights violation. both of these are important considerations for indonesia because of its ambiguous attitude in placing these two theories appropriately and purposefully. keywords: universality of human rights; cultural relativism; discrimination; vulnerable groups; plural society; human rights protection. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 451 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………….….. 449 table of contents ……………………………..…...……….….. 451 introduction ………………………………….……………..……. 451 concept of universalism and cultural relativism of human right …………………………………. 454 i. universality of human rights ………………………….….…….…. 454 ii. cultural relativism of human rights .…………………………..…. 455 debates between the two theories, ctiqiues and challenges of cultural relativism ……………..…… 458 contribution of culture relativism in human rights protection ………………………………………………. 460 i. balancing of cultural relativism and universality of human rights ……………..………………………………………………..... 460 ii. contributions towards vulnerable rights protection ………….... 462 indionesia attitude ……………………………………………. 465 i. support to theory of universality, but less proportional ….….... 465 ii. attitude towards cultural relativism ……………………...….….. 469 conclusion ………………………………………………..……..…. 472 references ………………………………………………………….. 474 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. how to cite: pratiwi, c.s. (2020). bridging the gap between cultural relativism and universality of human rights: indonesia attitudes. jils (journal of indonesian legal studies), 5(2), 449-478. https://doi.org/10.15294/jils.v5i2.39271 introduction debates on universality of human rights and cultural relativism seems to be eternal and will continue to exist as societal dynamics that bring different http://journal.unnes.ac.id/sju/index.php/jils 452 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils views, concepts and understandings of human rights and culture1. however, it cannot be denied that modern international human rights law, which is currently being referred to and adopted by the international community, remains create gaps in the protection of human rights. meanwhile, the development of cultural relativism in the 20th century is quite successful in bridging the gap between the two and contributing positively to the implementation of international human rights law at a domestic level. nonetheless, the cultural relativism approach presents critiques and challenges. among scholars, posner criticized that the high number of ratifications of international human rights treaties is not directly proportional to the protection of human rights, needs to be a material for reflection2. in one hand, countries claim to have a national interest in maintaining the unity, tolerance, and harmony of plural society, so they try to build a balance when facing conflicting rights. on the other hand, states understand the weaknesses of universality of human rights, that there are no strong and binding mechanisms in the international human rights law regime, ratified treaties can be reserved, and there are norms in human rights law that fulfil them by the state can be done in stages. therefore, the rigidity of the application of the principle of universality of human rights to all kind of rights, is contradictive with the international human rights law itself. the conformity of international human rights law based only on global consensus as a result of the state's ratification to the treaties will not solve the problem and fail to accommodate local traditions, practices, values, morality which are in fact diverse. the combination of these two theories needs to be directed and targeted to optimize the protection of harmonious human rights. first, the application of the strong theory of universality needs to be supported by the global community when dealing with fundamental rights such as the right to life, the right to be free from torture, or from slavery, the right without 1 jack donnelly, the relative universality of human rights, 92 human rights quarterly 281, 194-204 (2007); jack donnelly, universal human rights in theory and practice 175-177 (cornell university press, 2013); michael goodhart, neither relative nor universal: a response to donnelly. 30 human rights quarterly 183, 183-193 (2008); louis henkin, the universality of the concept of human rights, 506 the annals of the american academy of political and social science 1, 10-16 (1989); makau mutua, human rights in africa: the limited promise of liberalism, 51 african studies review 17, 17-39 (2008). 2 eric a. posner, the twilight of human rights law 35-36 (oxford university press, usa, 2014). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 453 available online at http://journal.unnes.ac.id/sju/index.php/jils discrimination, and the right to choose or embrace religion. second, while cultural relativism theory is also important to optimize the protection of communal rights or the right of marginal groups that are often forgotten, as well as when the government needs to deal with the competing rights. for example, a state needs to make a balance between the right to freedom of expression and the right to freedom of religion when dealing with the case of fgm, proselytism, blasphemy, lgbt, and many other sensitive issues. with a note, the state does not take refuge under the theory of cultural relativism to justify actions that violate basic rights, on the grounds of maintaining public order or public morality. then, is indonesia's attitude appropriate in building a balance between the two? having regard to the fact that indonesia is a participating country who ratified 8 out of 9 of the core international human rights treaties, while on the other hand the protection of human rights related to the rights to freedom of religion and expression is still in the spotlight of the international community. by using various secondary resources, this paper seeks to discuss the contribution of cultural relativism in building bridges over the gap between cultural relativism and the universality of human rights in the protection of human rights, as well as analysing indonesia's attitude towards the universality of human rights. this paper begins with the concept of cultural relativism and universality of human rights. then, it continues to examine critiques of the debate between cultural relativism and universality of human rights. in part two, it analyses the need to balancing between the two since a rigid understanding of the universality of human rights can ignore local values and rules3, while applying cultural relativism as a justification for coercive or discriminatory actions against vulnerable groups that was criticized by mayer4. in part three, it elaborates four aspects of contribution of cultural relativism to the protection of human rights, as well as some challenges to avoid the misused of cultural relativism approach for justification of recurring human rights violations, and the state's reluctance 3 donnelly, 2007, supra note 1; jack donnelly, human rights: both universal and relative (a reply to michael goodhart), 30 human rights quarterly 198-199, 194-204 (2008); donnely, 2013, supra note 1. 4 ann elizabeth mayer, islam and human rights, tradition, and politics (westview press, nashville, tennessee, 2013). http://journal.unnes.ac.id/sju/index.php/jils 454 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils to conduct domestication of international human rights law. then, finally it closes with concluding remarks. concept of universalism and cultural relativism of human right i. universality of human rights universality of human rights based on the theory of rationalism believes that human rationality is important in protecting human rights to treat all humans equally.5 this theory emphasizes the importance of respecting human dignity of every human beings, because human rights are inherent, indivisible, requiring equal treatment or without discrimination to every human being universally. according to natural law theory, human right comes from nature. human right is inherent and belong to everyone in everywhere, from birth until death6, simply because he or she is a human being. therefore, international human rights law focuses on protecting individual rights rather than communal rights. as laid down in universal declaration of human rights (udhr) of 1948 and its various derived covenants that “everyone” shall enjoy the right to life, freedom from torture, freedom from slavery, freedom from any discrimination.7 to guarantee human rights that originate from nature and are abstract, a legal framework is needed to ensure that the inherent rights that exist in humans are not violated by the state or other parties. according to donders, universality of human rights produce universal human rights legal norms.8 these 5 the theory of rationalism aims to reduce the limit aspect of the theory of natural law that based on the concept of morality in which what is good and bad is changed overtime. for example, in the past the practice of slavery considered as good practice or legal, but today it considered as bad or illegal. however, other than that the idea of natural law, such as justice, equality, human dignity becomes the core concept of human rights. see also donnelly, 2013, supra note 1. 6 ronald dworkin, rights seriously (edinburgh, a&c black, 2013). 7 henkin, 1989, supra note 1. 8 yvonne donders, do cultural diversity and human rights make a good match? 61 international social science journal 16, 15-35 (2010). http://journal.unnes.ac.id/sju/index.php/jils https://www.google.com/search?safe=strict&rlz=1c1chbf_enid878id878&q=edinburgh&stick=h4siaaaaaaaaaopge-luz9u3smwtrixt4gaxjxlnzbvus5ot9pol0hpzmqssszlz81a4vmn5pxkpqsmlwdlduzlzkkql0jn2sdicae5gp05naaaa&sa=x&ved=2ahukewj3wuvy_v7uahumeiskhagmd6qqmxmoatapegqierad jils (journal of indonesian legal studies) volume 5(2) 2020 455 available online at http://journal.unnes.ac.id/sju/index.php/jils international legal norms comprise into various human rights treaties, which states can ratify.9 in the core instruments of human rights law tend to follow the theory of universality of human rights. for instance, the udhr in article 1 that “all human beings are born free and equal in dignity and rights”. the use of similar terms of “all human beings” such as “every person”; “everyone” or “no one” can also be found in the iccpr.10 universalists such as steiner et al. believe that human rights law should be universally enforced in all contexts because it is the result of agreements with various countries about common standards that must be achieved to protect human rights.11 therefore, referring to universality of human rights theory places international human rights law above domestic law. therefore, countries that ratify international human rights treaties have legal consequences for compliance. the national attitude is to domesticate international human rights law into national law. this domestication has consequences for the actions of amendment, cancellation of the domestic laws that block human rights protection or making a new law that are needed to follow-up the ratification and to make sure that the new law is in line with international human rights law. universalists advise to leave or even against local cultures that are discriminated against certain groups of people, create un-equal treatment, and are not in harmony with international human rights law. ii. cultural relativism of human rights conceptually, cultural relativism of human right is a concept that places human rights as values that cannot escape from the influence of local culture so human rights cannot be uniformed between one country and another, because each country has a diverse culture. therefore, the concept of cultural relativism rejects the universalism of human rights. donnelly emphasizes that cultural relativism is influenced by reality, morals, and social 9 alberto quintavalla, & klaus hein, priorities and human rights, 23 the international journal of human rights 679, 679-697 (2019). 10 donders, supra note 8. 11 henry j. steiner, philip alston, & ryan goodman, international human rights in context: law, politics, morals: text and materials 366-367 (oxford university press, usa). http://journal.unnes.ac.id/sju/index.php/jils 456 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils institutions, where each culture has three different character.12 therefore, what happens in one country is strongly influenced by the local culture, which other countries cannot judge.13 donnelly also divides cultural relativism into two, namely (1) strong or radical cultural relativity, where values, morality, and local practice are the sole determinants of human rights morality; and willing to recognized few basic rights; (2) weak cultural relativism, will accept the concept of universality of human rights, with variations in adjustments and in strict restrictions influenced by local cultural.14 this view believes that applying international norms that are contrary to local culture violates a country's sovereignty. unfortunately, until recently, indigenous groups or religious minority groups often get unfair treatment because they are considered not "fully human beings" that make them ruled out. discrimination against minority groups such as genocide happened during world war ii and continue until today.15 mutua warns that the excuse of the proselytizing, millions are killed and enslaved because of untold suffering. mutua gives an example of the application of proselytism that violates the right of freedom of conscience of africans communities to protect their own beliefs.16 the coercion of proselytism in south africa done by christianity and muslim defeat differences and influentially enforce the orthodox religions.17 mutua indicates that universality of human rights does not reach all the way into the indigenous peoples’ rights. mutua argues that indigenous beliefs have a right to be respected and left alone from more dominant external religions. the right to advance, receive, and disseminate ideas are not absolute rights and allow to be limited based on certain circumstances that prescribed by law. therefore, mutua suggests others to understand the africans’ culture 12 donnelly, 2007, supra note 1. 13 ulf johansson dahre, searching for a middle ground: anthropologists and the debate on the universalism and the cultural relativism of human rights, 21 the international journal of human rights 611, 611-628 (2017). 14 istvan lakatos, thoughts on universalism versus cultural relativism, with special attention to women's rights, pecs j. int'l & eur. l. 6, 6-25 (2018). see also michael freeman, human rights. (john wiley & sons, new jersey, us, 2017). 15 for example, acts of genocide and disregard of minority rights against jews (during world war ii), still occur when international human rights law has become a legal system, such as genocide against bosnia muslims (1995), rohingya muslims (2017 to date), or tutsi tribes (1991). see max roser & mohamed nagdy, “peacekeeping”, our world in data (2013), retrieved from https://ourworldindata.org/peacekeeping. 16 mutua, supra note 1, at. 94. 17 id., at. 95. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 457 available online at http://journal.unnes.ac.id/sju/index.php/jils and protect their religions from the imperialist’s religions through devise norm and mechanism how to protect them. a relativist like mutua questions about the concept of individual rights that excludes communal rights.18 mutua calls the concept of individual right as a western product, while henkin calls this concept as “eurocentric formulation of human rights”.19 both mutua and henkin argue that these concepts override culture values rooted in pluralistic society.20. this approach would be a difficult to accept by countries with diverse societies such as in asia or in africa.21 mutua questions the western attitudes that narrate female genital mutilation (fgm) as barbaric african atrocities that make women as “victims” and perpetrators as “barbarians” thereby violating human rights, are western imperialism.22 the autonomous choice of women or the involvement of medical technology in fgm and highly valued of cultural tradition should be to respect fgm, apart from some who reject it.23 mutua is true that the fgm tradition should be respected as a communal right. if this tradition violates the right to be free from torture, then the “torture” aspect may be challenged, but not its tradition is prevented.24 increasing awareness of african women about hygienist is urgent and abandonment of fgm should be based on the women concern. uniformity of hr in this western view would eliminate communal rights, because ihrl does not require uniformity. therefore, mutua believes that 18 id. 19 henkin, 1989, supra note 1, at. 43. 20 id., at. 14. see also mutua, supra note 1, at. 90; adamantia pollis, peter schwab, and christine m. koggel, “human rights: a western construct with limited applicability", moral issues in global perspective. vol. 1: moral and political theory (2006); adamantia pollis & peter schwab (eds), human rights: new perspectives, new realities (colorado, us, lynne rienner publishers, 2000); adamantia pollis, human rights and globalization, 3 journal of human rights 343, 343-358 (2004). 21 christina m. cerna, universality of human rights and cultural diversity: implementation of human rights in different socio-cultural contexts, 16 human rights quarterly 740, 740-752 (1994); mutua, supra note 1; pollis, schwab, & koggel, supra note 20. see also pollis & schwab (eds), supra note 20. 22 mutua, supra note 1. 23 rigmor c. berg, & eva denison, a tradition in transition: factors perpetuating and hindering the continuance of female genital mutilation/cutting (fgm/c) summarized in a systematic review, 34 health care for women international 837, 837-859 (2013). 24 mutua, supra note 1, at. 24. http://journal.unnes.ac.id/sju/index.php/jils 458 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils human rights should be adjusted following local contexts in order to respect communal rights.25 debates between the two theories, critiques and challenges of cultural relativism the debates between cultural relativism and universality of human rights create a divergence among scholars where some of them support the notion that human right is universal and should be applied equally, regardless the countries’ local cultures or religions, while relativists reject this idea. mutua’s critiques are quite strong, but to apply cultural relativism to be relevant with domestic context would depend on the proactive attitude of the national government to adopt international human rights law into domestic law. international human rights law itself does not fully prohibit the limitation of human rights as elaborated earlier. since in the past time was no such clear guidance on how to practice legitimate proselytism or fgm should be done, these practices seem acceptable in any way. but, after the ratification of united national convention against torture (cat) or the adoption of un resolution 13/18 on forb, the practice of fgm and proselytism right is not absolute. no one can be pushed to do fgm or no one is permitted to coerce others to change their religions. everyone can change or leave his/her own religion and convert to other religion based on their concern. the tradition of fgm which is believed by a certain community as part of religious command, such as in south africa or in indonesia, should be respected in certain condition, such as if it done without coercion and without causing harm or diseases. or, teaching religion to others can be justified by human rights law if the teaching of religion is carried out without coercion, and when someone converts to other religion, it is done based on his free choice and belief. the right to practice worship or trust is only possible if it jeopardizes national interests, public health, public order, and public morals. the practice of fgm as a religious command certainly needs to be stopped if this endangers public health. respecting a society’s culture 25 mutua calls his experience to be baptist under christianity when he was studied. ignoring peoples’ right could be done in subtle ways through economic assistance or education that makes someone leave their original religion and convert to another religion. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 459 available online at http://journal.unnes.ac.id/sju/index.php/jils does not always mean rejecting international human rights laws. okere (1984) reasons that “the african conception of “man” is not that an isolated and abstract individual, but an integral member of a group animated by a spirit of solidarity”.26 although they reject to use of western standard for all humanity, but still they agree that many international human rights laws are valid.27 however, mutua's view that says that human rights law does not provide an adequate portion of respect for communal rights is reasonable. it is also true that communal right is only briefly mentioned in udhr, while various un resolutions that recognized the communal rights are not legally binding. unfortunately, many national laws experience slow changes in adjusting the community dynamics or in formulating the standard restrictions of the rights to be adapted with domestic context. as the result, the same attitude of hr violations that have been done by imperialist country towards minority groups tend to be copied by their own government.28 although mutua’s observation in south africa is true that in the past, the application of universality of hr was failed to provide equal treatment between majority and minority groups. however, the unequal treatment remains happened today. many countries in asia and africa who support cr release their own hr instruments, such as the achpr and the asian declaration of hr (adhr), as well as various national hrl. but they still engage hr violations against their own citizens rights both individual and communal rights. for example, according to south africa human rights 26 b. obinna okere, the protection of human rights in africa and the african charter on human and peoples' rights: a comparative analysis with the european and american systems, 6 human rights quarterly 141, 141-159 (1984). 27 in this principle, the government (state) has an obligation to ratify international human right instruments and agreements and then continues with domestication to adjust ihrl with local custom and regulations. this is the point where all complications appears when domestic law and values were considered more suitable than the universal value of human rights and therefore could be rejected or reduced. there are many forms of rejection by many countries starting from a formal reservation from applying several articles on incompatibility ground with domestic law up to ratification delay or rejection of ratification or they are ratified but delaying the domestication process indefinitely. see african charter on human and people rights (achpr). 28 for instance, the enforcement of blasphemy laws that inherited from colonized countries remains exist in various countries until today, although many scholars indicate that the laws tend to violate the right to freedom of religions, particularly since the laws have been targeted various minority religions. for further reading, please see melissa a crouch, law and religion in indonesia: the constitutional court and the blasphemy law, 7 asian journal of comparative law 1, 1-46 (2011). http://journal.unnes.ac.id/sju/index.php/jils 460 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils report from 2012 to 2017, human right that violated the most is the right to equality in the form of unfair discrimination on the ground of racial discrimination with total number of complaints increased from 511 in 2012/13 to 705 in 2016/17.29 moreover, in asia regions, hr violations against minority groups still becomes the main issue. human rights violations against rohingya still continue to happen in myanmar,30 and in other countries since they become the refugees.31 the transition to democracy in african and asian countries still faces challenges. promotion and protection of human rights in countries that tend to glorify cr will also depend on governments’ will and ability. contribution of culture relativism in human rights protection i. balancing of cultural relativism and universality of human rights basically, relativists such as mutua or donnelly do not fully oppose universalist groups who support ihrl. mutua32 did not totally reject ihrl but wanted a cross-cultural dialogue on human rights to optimize the protection at the domestic level. the conception of universality such as individual claims and state obligations have been practiced cross-culturally and historically international human rights law by various nations such as in arab countries, asia, africa.33 those countries are also members of the un and ratified various international hr instruments. these mean that the relativists also recognize dworkins' theory of natural law that hr is inherently owned by humans because of their dignity. 29 see south african human rights commission, human rights-overview of human rights violations 2012-2017. 30 un human rights council, report of the independent international fact-finding mission on myanmar 21 (2018). available from https://www.ohchr.org/documents/hrbodies/hrcouncil/ffmmyanmar/a_hrc_39_64.pdf. 31 rohini j. haar, karen wang, homer venters, satu salonen, rupa patel, tamaryn nelson, ranit mishori & parveen k. parmar, documentation of human rights abuses among rohingya refugees from myanmar, 13 conflict and health 1, 1-14 (2019). 32 mutua, supra note 1, at. 94. 33 donnelly, 2007, supra note 1, at. 284-285. http://journal.unnes.ac.id/sju/index.php/jils https://www.ohchr.org/documents/hrbodies/hrcouncil/ffm-myanmar/a_hrc_39_64.pdf https://www.ohchr.org/documents/hrbodies/hrcouncil/ffm-myanmar/a_hrc_39_64.pdf javascript:; javascript:; javascript:; javascript:; javascript:; javascript:; javascript:; javascript:; javascript:; jils (journal of indonesian legal studies) volume 5(2) 2020 461 available online at http://journal.unnes.ac.id/sju/index.php/jils however, in order to guarantee and justify the abstract inherent rights of human beings, a written law is needed. this argument is supported by the theory of positivism so that human right is not violated by the duty holder.34 this theory has led to the birth of various international human right conventions,35 the ratification of the state of these conventions,36 including the domestication of international human rights law in various countries through amendments of constitutions and national legal reforms.37 unfortunately, the effectiveness of international human rights law is questioned not only by relativists such as mutua,38 but also positivists such as posner. posner point outs that the high number of ratifications of international human rights law is not directly equivalent to the effectiveness of human rights protection at the domestic level. there are still many human rights violations did by the state parties.39 moreover, the current developments show that asian values, african values, islamic values or western values are translated to support human rights. meaning that there are no values that are incompatible with or fully compatible with human rights.40 donnelly argues that culture relativism is “a set of doctrines that imbue cultural relativity with prescriptive force”41 or “the principles sources of validity of a moral right and rule”.42 in other words, donnelly implies “the relative universality of human rights”.43 it means, although hr is conceptually based on moral code and functionally universal as mentioned by henkin above, but its implementations are relative and depend on how the society interprets rights and to what extent the empirical, political, and 34 rosalyn higgins, problem and process: international law and how we use it (oxford, clarendon press, 1994). 35 there are at least nine of core human rights treaties, namely icerd, iccpr, icescr, cedaw, cat, crc, icrmw, ced, crpd. where each instrument is monitored by treaty bodies. see the complete treaties available at http://ohchr.org/en/professionallinterest/pages/coreinstruments.asspx [accessed may 2, 2020] 36 recently, the total number of state parties to the iccpr are 173 countries, while the total number of state parties to the icescr are 170 countries. see at https://treaties.un.org/pages/viewdetails.aspx [accessed may 2, 2020] 37 domestication of ihrl is needed to ensure that human rights norms are adopted in order to ensure legal certainty in the protection of human rights for everyone. 38 mutua, supra note 1, at. 94. 39 posner, supra note 2. 40 donnely, 2007, supra note 1, at. 290. 41 id., at. 294. 42 jack donnelly, repression and development: the political contingency of human rights trade-offs, in human rights and development 305-328 (palgrave macmillan, london, 1989). 43 id. http://journal.unnes.ac.id/sju/index.php/jils http://ohchr.org/en/professionallinterest/pages/coreinstruments.asspx https://treaties.un.org/pages/viewdetails.aspx 462 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils philosophical contexts are permitted.44 because every culture and society differ in significant ways.45 however, donnelly reminds that radical or strong culture relativism is “misguided” because its denial to human dignity. while radical universalism is also denial to the local wisdom and national self-determination.46 following donnelly thoughts, in one hand, it is very urgent to make a balance between culture relativist approach and universality approach through accepting the idea of universality of human rights. on the other hand, recognizing culture as a source of limitation and exception according to local values and context, what fit best on their local situation, is needed. the balance is also relevant with the core hr instruments, such as the universal declaration of human rights, international covenant on civil and political rights (iccpr) and the international covenant on economical social cultural rights (icescr).47 ii. contributions towards vulnerable rights protection it is no doubt that radical ethnocentrism can also cause violence and discrimination in society, when it only focuses on the cultures of the majority.48 however, without denying the existence of ihrl, cr contributes in promoting and protecting communal rights or vulnerable rights in third world countries in several ways as long as the governments are able to overcome its challenge. first, cultural relativism build tolerance among divers community and supports for the protecting of communal rights.49 since ihrl is too 44 henkin, 1989, supra note 1, at. 284. 45 cerna, supra note 21; pollis, 2004, supra note 20. 46 donnely, 2007, supra note 1, at. 292. 47 in order to protect the right to forb and foe that guaranteed under art.18 to art.21 of the iccpr, the states need to protect the principle of individual autonomy (art.1) and the principle of equality and non-discrimination (art.2 and 4 of the udhr). these principles are universally accepted and should not be reduced by the states on behalf of culture relativism. therefore, the limitation of forb and foe are permissible under art.18 (3) or 19 (3) of the iccpr as long as the limitations are not contradictive with the right guaranteed under art.1, 2, and 4. for instance, the enforcement of bl mays accepted in perspective of a weak culture relativism, but it would be problematic if the enforcement of such law excluded or discriminated certain groups of people because of their religion or belief is different with the majority. 48 donnely, 2007, supra note 1; donnely, 2013, supra note 1; mayer, supra note 4. 49 richard harvey brown, & laure bjawi-levine, cultural relativism and universal human rights: contribution from social science of the middle east, 4 the anthropologist 163, 163-174 (2002). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 463 available online at http://journal.unnes.ac.id/sju/index.php/jils focused on protecting individual rights, it often ignore local culture that respected by community. as donnelly notes that radical cultural relativism can also threaten human rights if the culture of the majority is placed above all else. cultural relativism contributes to tolerance so that majority groups do not hegemony minority groups, while minority groups respect the rights of majority groups. in a plural society like countries in asia, mutual understanding and respect for differences is very important, to avoid horizontal conflicts or hatred that can trigger greater conflict. for example, supporting the use of local languages continues to be pursued by the united nations, the african charter of human and people rights is quite successful in recognizing the existence of marginalized groups in africa.50 furthermore, in 2016, the constitutional court of indonesia acknowledges beliefs to be mentioned in citizen identity cards.51 the challenge is that this achievement requires a long process and time to build public awareness and law enforcement on the importance of respecting the rights of minority groups, as well as the willingness and speed of government to reform national laws. second, cultural relativism allows domestic law to determine the standard of limitation of hr through considering some aspects, such as “public order” or “public morality” as lay down in articles 18 (3), 19 (3), 20 (3) of the iccpr. public order or morality are formed and respected by a local community to maintain order of living together.52 for example, in exercising the right of expression, every person or religious person has the right to share information or educate others about religion, but to proselytize someone to convert to other religion is certainly limited by public order. each country will have different definitions of what public order and morality mean. european countries themselves also use “margin appreciation” to accommodate how “public order” and “public moral” are used as judges’ considerations in deciding various cases of coinciding human rights violations,53 while in asia and africa known as “asian values” and “african values”. the challenge is to build political awareness of government and parliament to immediately 50 kealeboga n bojosi & george mukundi wachira, protecting indigenous peoples in africa: an analysis of the approach of the african commission on human and peoples' rights, 6 african human rights law journal 382-406 (2006). 51 decision of the constitutional court of indonesia no. 97/puu-xiv/2016 52 robert p. george, the concept of public morality, 45 the american journal of jurisprudence 17, (2000). 53 onder bakircioglu, the application of the margin of appreciation doctrine in freedom of expression and public morality cases, 8 german law journal 711, 711-733 (2007). http://journal.unnes.ac.id/sju/index.php/jils 464 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils reform various outdated regulations that potentially violate the rights of vulnerable groups into the new laws that formulated clearly and definitely.54 third, cultural optimizes the protection of vulnerable groups. according to the theory of human capabilities, international human rights law is based on recognition of common values that can be applied to all humanity as a minimum standard so that people are efficient functioning.55 however, this theory forgets the fact that the human condition is not always the same. there are several marginal or vulnerable groups either naturally (diffable persons, children) or because of social construction (women, lgbt) or because of situations of war or economic weakness (refugees, immigrants) making them retarded and vulnerable to becoming victims of violence or discrimination. therefore, they need special treatment or attention to be able to enjoy their rights as human beings.56 the udhr and twin covenants do not specifically regulate women's rights, children's rights, and the rights of vulnerable groups such as refugees, immigrant workers, disabled people, lgbt, religious minorities. therefore, in many ways, these elderly groups are often the targets of human rights violations in various countries. relativists have succeeded in encouraging protection by the promotion of special groups, namely the birth of various special conventions such as cedaw, icrc, the migrant workers convention, refugee. sally merry through vernacularization encourages the protection of women's rights in various countries and finding common ground of ihrl with local values that they have known and applied.57 54 for example, the desire to maintain blasphemy laws in several countries of asia regions in order to protect religious pluralism must be accompanied by efforts to immediately revise the blasphemy law that still uses ambigua restrictions on public order parameters. if not, violence and discrimination against minority religious groups will continue to occur in these countries. 55 martha nussbaum, & amartya sen, (eds). the quality of life (oxford, clarendon press, 1993); john rawlstheory of justice, (oxford, oxford university press, 1971). 56 the special treatment given by the state to vulnerable groups such as children, women, disabled groups, refugees at a glance is contrary to the concept of "equality of treatment". this is known as affirmative action or positive discrimination. this positive discrimination action is needed to catch up the backwardness suffered for example, women who live in patriarchy society. this special treatment is temporary. for example, a quota giving 30 percent of women legislative candidates to be very important to increase women's participation in politics. likewise, the various facilities provided by the state to the diffable certainly vary in their levels between one country and another, because the land line is also influenced by the level of the economy and natural resources owned by the state. an important note is that the willingness of the state to gradually and continuously achieve progressive fulfillment of marginal groups is urgently needed. 57 sally engle merry, transnational human rights and local activism: mapping the middle, 108 american anthropologist 38, (2006). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 465 available online at http://journal.unnes.ac.id/sju/index.php/jils the acceptance of cultural relativism should be directed as an effort to bridge the gap between ihrl and domestic or local law that existed long before the birth of international human rights law. so, in the transition to democracy era, third world countries need support from the international community to optimize hr protection, and expect them to not radically judge countries with the stigma of "human rights violators" as is often reported by international hr non-government organizations such as amnesty international or human rights watch. on the other hand, cultural relativism approach is not a justification that can be loosely used by the state to violate hr of its citizens. according to zechenter, ignorance and repetition of the same human rights violations in the name of cultural relativism certainly create an attitude of skepticism and criticism for cultural relativism worshipers who are considered to support or excuse hr violations occurring within the country.58 indonesia attitude i. support to theory of universality, but less proportional indonesia's support for the theory of universality of human rights can be seen from its attitude and political support for the international legal regime, but less proportional. first, indonesia is the country in southeast asia that has ratified the most important international human rights treaties. among the nine main human rights instruments, indonesia has ratified eight of them, that are the covenant on civil and political rights, the covenant on economic, social and cultural rights, the convention against torture, the convention on the protection of the rights of the child, the convention on the elimination of all forms of violence against women, etc. almost all the 58 for example, even though myanmar has received much criticism from various international communities, a closed attitude and repetition of violations of rohingya rights is a form of ignorance of myanmar government on the name of cr. there is a need for willingness and full effort from countries in the transition of democracy to optimize the role of the government and parliament in domestication of ihrl to reformulate the standard limiting of "public order" and "public morality" that are appropriate and clear. see elizabeth m zechenter, in the name of culture: cultural relativism and the abuse of the individual, 53 journal of anthropological research 319, 319-347 (1997). http://journal.unnes.ac.id/sju/index.php/jils 466 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils treaties were ratified without reservation of essential articles. some reservations were made regarding the settlement of disputes in the international court. this makes perfect sense because since 2000 indonesia has established a human rights court. second, indonesia has amended the constitution four times to strengthen democratization and protection of human rights. in the second amendment of 2002, the chapter x on human rights was indonesia's major achievement in domesticating international human rights law. the existence of article 28 letters a through j can be said to be almost total adoption from the universal declaration of human rights. in article 28 i, indonesia also recognizes fundamental rights that cannot be limited or reduced under any circumstances. unfortunately, article 28 j as a closing article, no longer distinguishes explicitly between rights that are non-derogable and those that are derogable. this lack of clarity causes the inaccuracy of the universality of human rights in indonesia. as a result, several issues that hinder the right to freedom of religion are still in the spotlight. the freedom to choose or embrace any religion or beliefs of every citizen is clearly mentioned in article 28i of indonesia constitution and categorized as a nonderogable rights in accordance with article 18 of the iccpr. however, when indonesia only recognizes 6 official religions and the government can claim other religions as heretical, article 28i loses its binding power due to the enactment of article 28j which is the reason for legitimizing claims and punishment to "misleading" religions. considerations for protecting religion as public morality and public order are considerations supported by article 18 (3) of the iccpr. this is why blasphemy's law in indonesia is still a subject of ongoing debate. as the guardian of the constitution and the protector of the constitution, the constitutional court correctly concludes that the blasphemy law contains norms that are multiple interpretations and need to be amended. however, on the other hand the constitutional court did not declare blasphemy law contrary to the constitution. the constitutional court believes that before the legislature drafted a replacement law from the blasphemy law, then to avoid the legal vacuum, the blasphemy was not cancelled. as a result, when the substitute law is not agreed upon and produced by the parliament, the blasphemy law continues to be used to prohibit or punish those who embrace a religion deemed "heretical". thus, the right to freedom of choice and embrace religion as a fundamental right that is universal and cannot be reduced under any http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 467 available online at http://journal.unnes.ac.id/sju/index.php/jils circumstances, is still not appropriately accommodated by indonesia. it is not surprising if in the upr in each round, indonesia continues to get the spotlight of fellow countries ratifying the iccpr and stake holders for violations of the right to freedom of religion and recommending revision of the blasphemy law. third, indonesia is very active in international forums for the promotion of human rights. the re-election of indonesia as a non-permanent member of the un security council for a period of 2019-2020 shows indonesia's commitment in maintaining world peace. unfortunately, within the country, indonesia still has homework that has not been completed for past human rights violations. the lack of independence of the national human rights commission is an obstacle to uphold fundamental rights that violated by the state apparatus. this tradition of impunity contradicts to the universality of human rights. this condition greatly affects not only to the growth of democracy in indonesia, but also to the level of public trust in indonesia's commitment to protect human rights. indonesia's ratification of a number of international human rights treaties will be considered merely in the interest of building an image of foreign politics, rather than upholding human dignity. with regard to the three reasons above, it is proper and indonesia should prioritize the principle of universality of human rights compared to the principle of cultural relativism. susetyo’s view59 which states that it is the duty of the state to place national and regional specialties and various historical, cultural and religious backgrounds must be remembered to promote and protect all human rights and fundamental freedoms for reasons of the complexity of the human rights regime in indonesia so that according to him international human rights law in indonesia cannot be implemented in the same way as it is applied in the western world, it seems that it needs to be reviewed. conflict of domestic law with international human rights law that still exists today, should not be used as a justification for indonesia to continue deviations or violations of human rights and hide from reasons of cultural relativism. susetyo elaborated on the complexity of human rights law which contradicts human rights law regarding 4 (four) matters, namely right to live, freedom of religion/freedom of conscience, right to marriage, 59 heru susetyo, human rights regime between universality and cultural relativism: the asian and indonesian experience, 16 indonesian j. int'l l. 19, 191-209 (2018). http://journal.unnes.ac.id/sju/index.php/jils 468 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils right of sexual orientation, and some of the personal rights but considered in indonesia as public domain. susetyo also acknowledged that these rights have guaranteed internal protection the law on human rights no. 39 of 1999 which is the adoption of values and principles enshrined at udhr 1948. for example, on article 4 “the right to life, the right to not to be tortured, the right to freedom of the individual, to freedom of thought and conscience, the right not to be enslaved, the right to be acknowledged as an individual before the law, and the right not to be prosecuted retroactively under the human rights law that cannot be diminished under any circumstances whatsoever”. but susetyo tolerated indonesian regulations to maintain capital punishment, even though for reasons other than those permitted by article 6 paragraph 3 of the iccpr. death penalty which continues to be maintained and applied for a crime: premeditated murder, drug offences, terrorism, genocide or crime against humanity, and corruption as set in criminal code and other special laws should be criticized. article 16 (3) does allow countries that still apply capital punishment, but with strict consideration and conditions. first, it concerns the type of criminal action. capital punishment is only permissible if it is applied to extraordinary rations, bringing victims in very large numbers, and carried out systematically. of the four crimes mentioned above, only genocidal crime is still permitted to be limited to death penalty. meanwhile, article 6 (3) also confirms that capital punishment cannot be aimed at minors or pregnant women. third, capital punishment should be an ultimum remedium, and it is possible for suspects to submit amnesty or forgiveness. fourth, it is important to emphasize that capital punishment can only be and can be imposed by a competent court in accordance with the principles of the rule of law. therefore, these points should be adopted in criminal law in indonesia, should the death penalty be defended. loose requirements in the application of capital punishment as long as it applies in indonesia will be very vulnerable to be misused to violate the human rights of citizens. indonesia's ambiguity in perpetuating capital punishment is still strong. this is evidenced by the continuing death penalty in the latest criminal code bill. even in the bill, especially in article 100, the decision to suspend the death penalty depends on the judge's decision, which should refer to article 6 (3) is the right of everyone to get a postponement of capital punishment. moreover, the right to life is a fundamental and constitutional right of every citizen guaranteed in article http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 469 available online at http://journal.unnes.ac.id/sju/index.php/jils 28a of the constitution. from data released by the institute for policy research and advocacy (elsam) and the institute for criminal justice reform (icjr) from 1987 there were 189 convicts who were sentenced to death, in january 2015, 164 death row inmates were still executed by the attorney general.60 however, none of these perpetrators committing genocide as permitted by article 6 (3) of the iccpr. this means that all convicts should be given the broadest possible effort to propose a postponement of the death penalty, or at least replace it as a life sentence. ii. attitude towards cultural relativism as the previous review, the theory of cultural relativism is important to consider in building a balance between protecting communal rights and individual rights, protecting marginal groups, or resolving conflicting rights that are coincide. unfortunately, this theory has not been properly applied in indonesia, although this theory has the opportunity to fill the gap between universal human rights and cultural relativism. this situation happens because the government tends to apply cultural relativism approach to legitimize human rights violations that occur in practices, in the name of protecting national interests, public order, or public morals. first, it has been a long time since indigenous peoples in indonesia have fought for their rights as the adherents of traditional religions or beliefs to gain recognition from the state. but their demand never materialized. traditional religions or beliefs in indonesia are considered as “non-religion” or as part of the national cultural heritage. therefore, they are under the responsibility of the ministry of education and culture, instead of the ministry of religion. the adherents of non-believers may not proclaimed their beliefs as religion. meanwhile, according to article 63 and 64 of the law no 23 of 2013 on population administration, everyone who want to apply for a resident identity card (ktps) is required to identify his or her religion from one of the six official religions recognised religions in indonesia, namely islam, catholicism, protestantism, hinduism, buddhism, and confucianism. as a result, believers cannot put the name of their belief 60 see hukuman mati dapat kurangi kejahatan, mitos!, https://icjr.or.id/hukuman-mati-dapat-kurangikejahatan-mitos/ http://journal.unnes.ac.id/sju/index.php/jils https://icjr.or.id/hukuman-mati-dapat-kurangi-kejahatan-mitos/ https://icjr.or.id/hukuman-mati-dapat-kurangi-kejahatan-mitos/ 470 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils in the religion column on the resident identification card. in practice, the choice can be made by simply mention one of the six religions recognized by the government. but the impact is not as simple as that. if a person chooses one religion that recognized in indonesia, then he or she lets the government ignore his or her right to choose and hold his or her own religion freely. or, if the person prefers to hold his own religion or believe that not recognized by the government, he or she cannot apply for a citizen identification card. as consequences, they will have difficulty to enjoy public services such as legalizing marriage, accessing education, finding a job, voting on general election, and many other things. these situations cause the person’s basic rights as a citizen is invalidated. the adherents of believers were treated unequally before the law. on the other hand, if the person filled the religion colum randomly, they could be charged as criminal for falsification of document. then, considering that the ktp is very urgent for every citizen to be able to enjoy various public services, in 2014 the minister of home affairs suggested that the section of religion in the ktp should be optional instead of compulsory, so that the believers still can apply a ktp by left the section blank. although since the 1st july 2018 the constitutional court of indonesia has decided that all believers of indigenous faith are allowed to put their faith as “penghayat kepercayaan” on the identification card, however the implementation of this new policy still far from perfect. some region has been successfully complying with the new policy, others still struggling to follow up the ruling. another example is about the unequal treatment of the state before the law towards members of minority religious groups such as shia and ahmadiyya. a new religious group who have different practice than the official recognised religions would immediately labelled as defiant groups by the government or banned to practices or criminalized. the religious teachings that confront the interpretation of the orthodox teaching group would immediately labelled as blasphemous or heresy no matter that under article 29 of the 1945 constitution says the state guarantees all persons the freedom of worship, each according to his or her own religion or beliefs. this condition hurts the feeling of justice in the society and indicates that the state has interfered the right to freedom of religion in the area of forum internum. the prohibitions and punishments toward the leaders or followers of a new religious teachings such as shia or ahmadiyya in indonesia are usually under the consideration to maintaining social order http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 471 available online at http://journal.unnes.ac.id/sju/index.php/jils assuming that their new teachings would tarnish the teaching of recognised religions and can cause conflict in society. however, since the enforcement of the law no.1/pnps/1965 concerning anti-defamation of religions, there is no such regulation that has definitive description about what does disturbing social order mean or what does tarnishing a religious value means. as the result, the blasphemy law is used more to punish followers of religious minorities who have different teachings than to prevent more dangerous of incitement of hatred. this kind of approach to cultural relativism, namely grouping hundreds of religions into six official religions, aims to maintaining religious harmonization in indonesia, at first glance it seems could minimize the potential complex of religious conflicts. however, in fact there are fundamental human rights principles that are ignored, namely the right to receive equal treatment, the right of non-discrimination, the right to choose and embrace a religion according to one's belief. thus, the cultural relativism approach has been used inappropriately because it still creates unfair treatment between officially recognized religions and non-recognized religions or traditional beliefs, so that what has been decided by the constitutional court should immediately ensure its implementation in practice to restore citizens' rights. country that has long been neglected by the state. second, it is easier to protect marginalized groups in indonesia through a cultural relativism approach. various affirmative actions to give special treatment to women, children, or groups with disabilities by increasing local cultural values accepted by the community can help them to fully enjoy their rights and reduce the practices of discrimination against them. for example, indonesia as the largest muslim community have valuable islamic teachings to respect for mothers or women. "honor your mother, your mother, your mother, then your father". local values of society that pay respect to mothers or women like this accelerate indonesia's efforts when it comes to implementing cedaw and passing the act no. 23 of 2004 on anti-domestic violence. third, indonesia can be said to be a strong follower of cultural relativism. if there is a conflict between domestic law and international human rights law, there is a tendency that domestic law takes precedence over international human rights law. for example in the constitutional court decisions no 140/puu-vii /2009, no 84 / puu-x / 2012, and no 76 / http://journal.unnes.ac.id/sju/index.php/jils 472 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils puu-xvi / 2018, the court stated that "…in providing opinions on law and justice upheld by the court, the court is not based solely on one perspective of religious freedom, but also based on various other perspectives, namely the perspective of the rule of law, democracy, human rights, public order, and religious values adhered to in indonesia. phrase “based on….public order, and religious values adhered to in indonesia” means that indonesia adheres to a strong cultural relativism. the question is how the court formulates “religious values adhered to in indonesia” as binding legal norms, while there are dozens of religions practiced in indonesia. is the word “adhered” to be interpreted as limited to “the official religion recognized by the state” or is it all religions “having followers” in indonesia. how to find common ground between these religious values. although there is no clear explanation regarding this matter, in various regulations and public policies related to the issue of blasphemy, the phrase “practiced religion” is interpreted as "the six official religions recognized by the government". the cultural relativism approach without clear measurements will certainly continue to cause injustice and unequal treatment before the law. thus, indonesia's challenge today is how to put the universality of human rights right on target. regarding fundamental rights as guaranteed in article 28i, restrictions should not be made for any reason. waiver of one or all of these fundamental rights is a form of ignorance of human dignity. meanwhile, the understanding of cultural relativism in which the state places national interests or moral values of domestic society above international norms is only possible with derogable rights such as the right to freedom of expression, or the right to express religion that endangers and discriminates against other groups such as hate speech. local values cannot be used as justification for the government to exclude or ignore fundamental rights, such as the right to choose or embrace a particular religion. the success of the government out of the polemic of the recognition of religious minority rights as in the case of believer is now become the best practice that should be applied to other minority groups. conclusion cultural relativism is a valuable contribution from sociologists and anthropologists to bridge the gap between international human rights law http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 473 available online at http://journal.unnes.ac.id/sju/index.php/jils and domestic context. thus, providing space for the international community to play an active role in promoting and protecting hr, without ignoring human dignity. the contribution of cultural relativism can be seen from building tolerance and protection of communal rights, the rights of marginal groups, and the optimization of domestic law when dealing with some competing’s rights. this is a good opportunity to reduce discriminatory actions against marginalized groups for maintaining tolerance and harmony in plural society. the effectiveness of the application of "margin appreciation" in europe should be the best practice to actualize "asian values" or "african values" in formulating the concepts of "public morality" or "public order" clearly and precisely. cultural relativism approach cannot be used by a government to justify any human rights violation. a totalitarian government system or any kind attitude of rejecting humanitarian assistance will only place cultural relativism approach as a mask to cover up ulcers of human rights violations that continue to be carried out by the state. the state's reluctance to reform several repressive domestic laws is certainly a challenge. dark history as a colony, does not seem to provide enough lessons for totalitarian government, when using its power to oppress its own citizens through various hr violations. cultural relativism approach can be optimally carried out if there is a willingness and maximum effort from the state to achieve better progress. indonesia's attitude towards understanding the universality of human rights and cultural relativism is still ambiguous. the approach of universality of human rights is not yet optimally protecting the right to freedom of choice and religion. the right to choose and embrace religion is still interfered with by the state on the pretext of protecting public order or religious values adhered to in indonesia. this kind of cultural relativism approach to human rights gives rise to a sense of injustice towards minority religious groups which have always been victims of the criminalization of the state. progress in the recognition of trust groups lately is a form of contribution to the cultural relativism approach that is appropriate and balanced, so it should be appreciated and developed to solve similar problems. http://journal.unnes.ac.id/sju/index.php/jils 474 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils references african charter on human and people rights (achpr). available online 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(1997). in the name of culture: cultural relativism and the abuse of the individual. journal of anthropological research, 53(3), 319347. http://journal.unnes.ac.id/sju/index.php/jils https://www.sahrc.org.za/home/21/files/state%20of%20hr%202019%20tar2016-2017%20human%20rights%20day%202019%20smaller.pdf https://www.sahrc.org.za/home/21/files/state%20of%20hr%202019%20tar2016-2017%20human%20rights%20day%202019%20smaller.pdf http://dx.doi.org/10.17304/ijil.vol16.2.749 https://www.ohchr.org/documents/hrbodies/hrcouncil/ffm-myanmar/a_hrc_39_64.pdf https://www.ohchr.org/documents/hrbodies/hrcouncil/ffm-myanmar/a_hrc_39_64.pdf 478 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils quote to deny people their human rights is to challenge their very humanity nelson mandela south african civil rights activist about authors cekli setya pratiwi has a bachelor of law, brawijaya university of malang in indonesia, an advocate license, the high court of surabaya, and a master of laws (llm), utrecht university. she is head of the legal office of the university of muhammadiyah malang (umm) and a senior law lecturer teaching human rights law, international law, and public interest litigation subjects. she recently was a resource for the master level course on syariah and human rights, coordinated by the center on religion and multiculturalism of umm, the oslo coalition on human rights – norway, and the international center for law and religion studiesbyu-utah. she participated in “religion and the rule of law,” a certificate training program in myanmar, vietnam, beijing, and jakarta, and in february 2017, was a speaker in the east java training program sponsored by surabaya legal aid, the asia foundation, and usaid. she was a chief researcher on the judges verdicts research, sponsored by the center for human rights study of law faculty of umm and the national judicial commission of indonesia; a senior researcher on the doctrinal research about the principles of good governance in indonesia; and a researcher on a socio-legal research of good governance principles in indonesia, both coordinated by the judicial support system program – supreme court of indonesia and the supreme court of the netherlands, and supported by the van vollen hoven institute, university of leiden. she has multiple publications on human rights, religion, and law. her most recent book is the guidance book of ungps on business and human rights, infid (2016). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 1 available online at http://journal.unnes.ac.id/sju/index.php/jils research article legal protection of indigenous people's rights through strengthening the licensing principles based on social sensitivity zaka firma aditya1 , sholahuddin al-fatih2  1 center for research and case analysis, indonesian constitutional court, jakarta, indonesia 2 faculty of law, university of muhammadiyah malang, malang, indonesia  sholahuddin.alfath@gmail.com submitted: february 3, 2021 revised: april 11, 2021 accepted: may 11, 2021 abstract the issue of human rights in indonesia towards the 21st century has shifted from violations committed by the government during the new order to the issue of human rights violations by multinational companies (corporate crime), because of natural resources exploitation is directly proportional to the increase in human rights violations. many cases of human rights violations by business actors that occur in the form of annexation and seizure of indigenous peoples land that occurs every year. one of the causes of the many human rights issue in various context: national and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 1, may 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-2633-0927 https://orcid.org/0000-0003-1166-5182 2 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils cases of human rights violations against indigenous peoples is due to the loosening of permits given by the government to companies wishing to exploit natural resources. strengthening the permits principle can be used as a strategic step in reducing the number of violations of poverty that occur to indigenous peoples. permits used as a means of controlling human behavior which results in rights and obligations born of licenses. keywords: permit; indigenous peoples; rights; protection http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 3 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 1 table of contents ……………………………..….………. 3 introduction ………………………………….……………. 4 violation of indigenous people's rights and shifting their responsibilities …………………….… 9 licensing principal based on social sensitivity …………………………………………………..… 18 conclusion ………………………………………….…..…… 28 references ………………………………………………….… 30 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. how to cite: aditya, z. f, & al-fatih, s. (2021). legal protection of indigenous people’s rights through strengthening the licensing principles based on social sensitivity. jils (journal of indonesian legal studies), 6(1), 1-34. https://doi.org/10.15294/jils.v6i1.44671 introduction the presence of foreign multinational companies in indonesia in managing natural resources is beneficial, in addition to increasing http://journal.unnes.ac.id/sju/index.php/jils 4 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils state revenue (apbn), also increasing employment, improving people's purchasing power and creating a conducive investment climate. in fact, to achieve this, the government is willing to make policies through policy packages and make visits to neighboring countries, so investors are willing to invest their shares in indonesia. however, these efforts are often not based on the good wills of the government and the company itself in the welfare of the surrounding community. alexandra xathanki mentioned that the government is only trying to attract investors without seeing and paying attention to the social conditions of the surrounding community.1 some of them were forced to leave their homes. meanwhile, the company is also less sensitive to the condition of the community. its evidenced by the lack of appreciation of local community personnel and preferring to use personnel from outside the region. indigenous peoples2 often live in rich areas of natural resources.3 this condition is becoming the target of resource extraction and development programs by the government and multinational companies.4 in the name of modernization and development of the nation's development, the existence of indigenous peoples faced with the impact of mining and logging, large-scale plantations and infrastructure programs. this project is usually carried out without notice, consultation, and approval to the affected communities and led to the massive migration of indigenous peoples from their hometown. as a result, various customary tenure systems 1 alexandra xanthaki, lands rights of indigenous peoples in south east asia, 4 melb. j. int'l l. 467, 467–95 (2003). 2 international labor organization, “ilo convention 169” (1969). 3 reggina renata tanuramba, legalitas kepemilikan masyarakat adat atas tanah ulayat menurut hukum agraria, 7 lex privatum 27, 25-33 (2020). 4 ana suheri, penyelesaian tanah sengketa adat melalui proses peradilan, 2 jurnal jendela hukum 33, 33–43 (2018). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 5 available online at http://journal.unnes.ac.id/sju/index.php/jils over forests and various natural resource management systems managed for hundreds of years removed in order to meet the country's purposes.5 for example in indonesia, more than 7.5 million hectares of land already covered by oil palm plantations.6 according aditya and al-fatih (2017) any of these plantations have been established in forest lands traditionally used by indigenous peoples.7 reports published by forest watch indonesia and the world resource of indonesia in recent years indicate that land acquisition for oil palm plantations is in line with serious violations of indigenous peoples rights, which are predominantly native inhabitants.8 their lands are often forcibly taken without prior knowledge, without consent and compensation.9 besides, indigenous peoples in indonesia over the last few decades have been suffered from the impacts of mining, logging, transmigration and other forms of development projects.10 as well as amungme indigenous peoples of west papua affected by freeport mining for almost 50 years. they lost their shelter, livelihood, and culture because the ertsberg mountains as the mountains considered sacred by them have been flattened and becoming the world's largest 5 forest watch indonesia/global forest watch, keadaan hutan indonesia (bogor, forest watch indonesia/global forest watch, 2001). 6 asia indigenous peoples’ pact, “asean’s indigenous peoples: the international work group for indigenous affairs (iwgia) and asian forum for human rights and development (forum-asia)” (chiang-mai, 2010). 7 zaka firma aditya and sholahuddin al-fatih, “the legal protection system of indigenous peoples in the southeast asia,” international conference “human rights in southeast asia: are moving backward?" (jember, 2017). 8 watch, keadaan hutan indonesia. 9 id. 10 ahmad fadlil sumadi, hukum dan keadilan sosial dalam perspektif hukum ketatanegaraan law and social justice in constitutional law perspective, 12 jurnal konstitusi 853, 853–54 (2015). http://journal.unnes.ac.id/sju/index.php/jils 6 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils gold and copper mine. although freeport company is able to mine tens of tons of gold and copper with a profit of 112m per day, the livelihoods of local indigenous peoples are still far from prosperity. moreover, not only in papua, the case occurred. in kalimantan, for example, there are cases of dayak tribes in suriyan district, central kalimantan. they demanded the rights of their customary land because the land they occupied and obtained by descending was annexed by entrepreneurs with large capital and some local government officials. meanwhile, in sulawesi, there are customary land disputes in east luwu, south sulawesi involving local communities against foreign mining companies pt. international nikel indonesia (inco). the case that most grabbed the public's attention was the mesuji case that occurred between 2009-2011 in lampung, which the public complained to the dpr ri in december 2011. the mesuji residents complained about the murder of approximately 30 villagers around the palm oil plantations in mesuji, lampung and south sumatra. badan perjuangan rakyat penunggu indonesia (bprpi)/aliansi masyarakat adat nusantara (2010) who asked the north sumatra provincial government to distribute 9,085 hectares of customary land to the community as agreed upon during the reign of north sumatra governor on may 24, 1980.11 the promised land located in langkat district and deli serdang district.12 in fact, when referring to the legislation, the state must protect indigenous peoples. human rights for the people of indonesia have been guaranteed in the constitution, namely in article 28a to article 28j of the 1945 constitution of the republik indonesia which involves life, liberty, and property. also the ratification of the universal 11 aliansi masyarakat adat nusantara, memahami dimensi-dimensi kemiskinan masyarakat adat (jakarta, aliansi masyarakat adat nusantara, 2010). 12 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 7 available online at http://journal.unnes.ac.id/sju/index.php/jils declaration of human rights into law number 39 of 1999 concerning rights human. in article 18b of the uud 1945, the state has recognized the existence of customary law communities and their traditional rights. although, indigenous peoples who located in the vicinity of mining extraction areas still cannot enjoy their rights. in addition, the existence of laws that are more legal in favor of the indonesian state has not been able to stem the dominance of the legal power of multinational companies. for example, pt freeport indonesia in its establishment was not based on the provisions of law number 5 of 1960 concerning agrarian principles; it was precisely the cooperation agreement with the indonesian government through the contract of work even though at that time law no. 1 of 1967 on foreign investment (pma law) had not been issued. seeing this, pt freeport indonesia in principle has ignored the subject matter of licensing in the pma law in the form of the absence of imb licenses, environmental disturbance licenses, and amdal documents to anticipate future impacts. the implementation of the regional autonomy system by giving power widely to the regions has shifted the concept of licensing from the central government to the provinces, with the note that licenses relating to natural resources remain the authority of the central government. this is what makes licenses a norm that interconnected from the central level to the regions, and the regions generally serve permits in a more practical domain, such as the h.o licenses, imb licenses, and amdal documents.13 however, due to investment reasons, the government then imposed a one-stop service system that facilitated licensing by ignoring the substance of licensing. like for example with a one-stop 13 adinda putri jade, diah nadia putri, and sholahuddin al-fatih, perizinan membuka tanah negara di kota balikpapan, 29 supremasi hukum: jurnal penelitian hukum 102, 102–30 (2020). http://journal.unnes.ac.id/sju/index.php/jils 8 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils service pattern, then taking care of h.o (environmental disturbances) and imb licenses can be done at the same time on the same day. it is not true, considering that the permit for h.o must be well-planned and cannot be done with just one or two days because it involves many people. amdal documents as a basis for predicting the consequences that can be caused by the existence of these activities often made in a relatively short period of time. as a result, when natural disasters occur due to certain activities, the government will eventually bear the burden of recovering costs. for example, the lumpur lapindo case that bears the burden is the central government, even though the disaster is the result of the activities of companies that are drilling gas in the middle of community settlement without a clear analysis of amdal documents. whereas, in the concept, the permits creates rights and obligations. therefore, it is very important to strengthen the principles of granting permits for management of resources in indigenous territories. strengthening these principles must be based on social sensitivity principles, which are sought not only for benefits but also for the welfare and sustainability of the indigenous peoples. the use of natural resources in indigenous territories must not pose a threat to their survival. because, they are legitimate owners of indigenous territories that are rich in natural resources long before the establishment of the country. this paper uses the method of legal research considering the unique and characteristics of legal science are normative.14 peter mahmud marzuki said that the legal research was carried out by identifying legal facts, collecting legal material, reviewing legal issues, drawing conclusions in the form of argumentation and finally 14 philipus m. hadjon & tatiek sri djatmiati, argumentasi hukum (yogyakarta, gadjah mada university press, 2008). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 9 available online at http://journal.unnes.ac.id/sju/index.php/jils prescribing based on the arguments that had been built so that they were in line with the prescriptive and applied nature of legal science.15 the reseacrh approach that used in this paper is the statue approach16 and the case approach.17 violation of indigenous people's rights and shifting their responsibilities aditya & al-fatih emphaszied that the idea of human rights starts from the view that humans are god almighty beings who naturally endowed with rights called basic rights, without any difference between one another. through these human rights, humans can develop their personal self, role, and contribution to the welfare of human life.18 the definition of classical rights as the basis for the ratification of human rights laws is expressed by cranston (1973): a human rights by definition si a universal moral rights, something which alk men, everywhere, at all times ought to have, something of which no one may deprived without a grave affront 15 peter mahmud marzuki, penelitian hukum (jakarta, kencana prenada media group, 2014). 16 peter mahmud marzuki, penelitian hukum: edisi revisi (jakarta, kencana, 2017). 17 peter mahmud marzuki, penelitian hukum (jakarta, kencana, 2005). 18 zaka aditya & sholahuddin al-fatih, state liability for violation of constitutional rights against indigenous people in freedom of religion and belief, 4 brawijaya l. j. 30, 29–58 (2017). http://journal.unnes.ac.id/sju/index.php/jils 10 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils to justice, something which si owing to every human being simply because he (she) is human.19 ronald dworkin (1977) said that every right is also attached to the obligation, so that in addition to human rights, there are also basic human obligations namely obligations that must be carried out for the realization of human rights.20 in using human rights, we are obliged to pay attention to, respect, and respect human rights that are also owned by other people. awareness of human rights, dignity, human dignity, and dignity begins with humans on the face of the earth.21 this is caused by human rights that have existed since humans were born and are natural rights inherent in humans. the history records various major events in the world as an attempt to uphold human rights.22 recognition of the existence of basic human rights provides moral and legal guarantees for every human being to enjoy freedom from all forms of servitude, oppression, deprivation, and persecution or other treatment that causes humans to not live as human beings worthy of glory by god. human rights itself is one of the pillars that is very important in supporting the establishment of a state based on law.23 19 cranston, what are human rights? (new york, basics book, 1973). 20 ronald dworkin, taking rights seriously (cambridge, harvard university press, 1977). 21 ketut arianta et al., perlindungan hukum bagi kaum etnis rohingya dalam perspektif hak asasi manusia internasional, 3 journal komunitas yustitia 167, 166–176 (2020). 22 zaka firma aditya & sholahuddin al-fatih, “democracy and human rights as a solution to resolve the humanitarian crisis in muslim countries,” in conference on islamic studies (icis) (yogyakarta, 2017). 23 michael freeman, human rights: an interdisciplinary approach (cambridge university press, 2004). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 11 available online at http://journal.unnes.ac.id/sju/index.php/jils as defined by the secretary-general of the united nations, the rule of law requires that legal processes, institutions and substantive norms are consistent with human rights, including the core principles of equality under and before the law , accountability before the law and fairness in the protection and vindication of rights.24 there is no rule of law within societies if human rights are not protected and vice versa; human rights cannot be protected in societies without a strong rule of law. the rule of law is the implementation mechanism for human rights, turning them from a principle into a reality.25 while universally agreed human rights, norms and standards provide its normative foundation, the rule of law must be anchored in a national context, including its culture, history, and politics. states therefore do have different national experiences in the development of their systems of the rule of law. nevertheless, as affirmed by the general assembly in resolution 67/1, there are common features founded on international norms and standards.26 its very strength norms to protect human rights in the rule of law. because the rule of law and human rights are two sides of the same principle, the freedom to live in dignity. the rule of law and human rights therefore have an indivisible and intrinsic relationship. that intrinsic relationship has been fully recognized by member states since the adoption of the universal declaration of human rights, in which it is stated that it is essential, “if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” 24 security council, the rule of law and transitional justice in conflict and post conflict societies (london, united nations, 2004). 25 id. 26 united nations, “rule of law and human rights,” united nations, 2021, https://www.un.org/ruleoflaw/rule-of-law-and-human-rights/. http://journal.unnes.ac.id/sju/index.php/jils 12 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils based on the regulation indeed, included international and national act/law, it is very clear to declare that human rights are a part of a state based on law. it means, that state must has a way to protect, to promote and to fulfill the rights of the citizenship. indonesia has a population of approximately 250 million. the government of indonesia recognizes 1,128 ethnic groups. the ministry of social affairs identifies some communities as komunitas adat terpencil (meaning ‘geographically isolated customary communities’).27 recent government acts and decrees use the term masyarakat adat or masyarakat hukum adat, which mean ‘customary law societies’. those customary law societies are considered to be indonesia’s indigenous peoples. aman estimates that the population of indigenous peoples in indonesia is between 50 and 70 million.28 those huge populations of indigenous peoples in indonesia are spreading from sabang until merauke, with different culture, language, etc. there are so many juridical norms to protect the rights of indigenous people in indonesia. but actually, it was ignored and violated since the publication of basic forestry law no. 5 of 1967, later replaced by the forestry law in 1999. the forestry law legalized land grabbing and converted customary forests into state forests. through this law, the government has been granting concessions to private companies for mining, logging, and plantations in indigenous people’s traditional lands in violation of their rights.29 it mean, the government more proactive with companies rather than indigenous 27 aman & aipp, “joint stakeholders’ submission on the situation of human rights of indigenous peoples in indonesia,” 3rd cycle of universal periodic review of indonesia, 27th session of the human rights council, 3rd cycle of universal periodic review of indonesia, 27th session of the human rights council (jakarta, 2017). 28 id. 29 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 13 available online at http://journal.unnes.ac.id/sju/index.php/jils people. this situation already happens for a long time, that make indigenous people eliminated from their customary land or customary forest. further, in 2013, the parliament adopted a law on the prevention and eradication of forest destruction that criminalized indigenous peoples living within national parks, protected forests and wildlife reservation. between 2014 and 2015 only, a total of twelve indigenous leaders have been put in jail for living in those areas while there have also been cases of burning and displacing indigenous villages. few representative cases of violations of indigenous people’s rights in the context of mining, logging, and plantations and in the name of conservation, which were reported to aman after 2012 or have been unresolved since earlier are listed in annex 1 and 2 respectively.30 the violation of human rights of indigenous people in indonesia continues to grow every year. the national human rights commission (komnas ham) notes that 20% of the complaints submitted to the commission are related to land disputes. in 2012, there were 1213 complaint files concerning on land disputes, 1,123 complaints in 2013 and 2,483 complaints in 2014.31 in other hand, aman has identified 2,230 indigenous communities that are asking for investigations. during 2013 alone, the group recorded 150 new cases of rights violations.32 that record showed how many cases about violations of human rights of indigenous people has been affected. further, the cerd has also repeatedly written to the government of indonesia on four representative cases of violations of 30 iwgia, “iwgia year book,” iwgia, 2021, https://www.iwgia.org/en/?view=category&id=303. 31 komnas ham, “komnas ham national inquiry summary april 2016,” komnas ham, 2016. 32 loren bell, “indonesia to hear indigenous peoples’ grievances on land disputes,” mongabay, 2014. http://journal.unnes.ac.id/sju/index.php/jils 14 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils indigenous rights reported to the committee between 2009 and 2015. these include violations of indigenous rights over their traditional lands, among others, in implementation of kalimantan border oil palm mega project,33 formulation of the regulation on implementation procedures for reducing emissions from deforestation and forest degradation (redd) within the frame of the united nations framework convention for climate change (unfccc),34 continuation of merauke integrated food and energy estate (mifee) project in papua35 and granting license to pt. menara group consortium for sugarcane 8 plantations in aru peoples’ ancestral territory in moluccas.36 another data of violations against indigenous people was recorded by komnas ham, reported that nearly 70 percent of indonesia’s forest 136 million hectares (336 million acres) belongs to the state.37 land conflicts involving indigenous people date back to the dutch occupation of the country from 1847 to 1942.38 land was frequently claimed as the state’s property without considering the customary claims of native people living in forested areas, so the indigenous people that live in forested areas must move on. this happened in kalimantan, sumatera, and papua. until nowadays, the state is still considered as the actor in charge of fulfilling human rights and the state is considered as the holder of international human rights obligations (state responsibillity). these paradigms form the basis of various rules of international human rights treaties, such as the international 33 cerd, “cerd early warning 13 march 2009,” cerd, 2009. 34 cerd, “cerd early warning 28 september 2009,” cerd, 2009. 35 cerd, “cerd early warning 2 september 2011,” cerd, 2011. 36 cerd, “cerd early warning 28 august 2015,” cerd, 2016. 37 fidelis e. satriastanti, “indonesia probes violations of indigenous rights in contested forests,” trust, 2014. 38 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 15 available online at http://journal.unnes.ac.id/sju/index.php/jils covenant on civil and political rights and the international covenant on economic, social and cultural rights. in the two covenants, the state and not any actor is responsible for protecting human rights. thus, other companies or legal entities are not considered as a subject to human rights law, both as stakeholders (duty holder) and as rights holders. in the old paradigm, companies or other legal entities cannot be held to legal responsibility to respect human rights. this old paradigm then ignores the latest facts about the presence and strength of multinational companies that are directly or indirectly involved in human rights violations in developing countries. seeing this, the author uses a legal analogy to describe whether the company is a legal subject in a human rights court or not. the new paradigm has spread amid the dissatisfaction of the international community because the imposition of human rights responsibilities that only relies on the state is no longer sufficient. along with the increasing role and economic-political strength of multinational companies, there is an urge to build a new paradigm that begins to consider non-state actors, in this case multinational companies. according to this new paradigm, multinational companies or other legal entities outside the country can be held legally accountable (legal responsibillity) for human rights violations that they might commit. the experience of the failed of a human rights lawsuit against a multinational company encourages an expansion of the concept of liability for human rights violations so that multinational companies can be held accountable under the basis of international human rights treaties. the first argument is based on the universal declaration of human rights which states that “every individual and every organ of society society to play their part in securing the observance of human rights.” the companies that categorized as a subject “organ of society society” http://journal.unnes.ac.id/sju/index.php/jils 16 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils has responsibilities to “promoting and securing those human rights set forth in the universal declaration”. in the law there are several legal interpretations, namely the interpretation used to embody the rules/ norms contained in each article in the law. as it is known that the human rights law in indonesia uses the word "every person", people in their legal concept are called "persoon" and are divided into two, namely people (naturalijke persoon) and legal entities/ corporations (rechts persoon).39 furthermore, the description of the perpetrators of crime is still often associated with acts that are physically carried out by the perpetrator (fysieke dader) even though in modern criminal law, especially in the social environment, the economy of a crime does not always need to commit his crime physically. actions taken by corporations (legal entities) are always realized through human actions, namely directors / management. thus, the transfer of management responsibility into corporate actions can be carried out if the act in the social traffic applies as a corporate act or known as functionale dader. it should be noted also by human rights observers at this time that the existence of a contract of work between pt freeport indonesia and the indonesian government made their legal standing balanced, meaning that no one had a higher position even though pt. freeport represents the business entity while the government represents the state legal entity. this means that, under contract law and contract law, pt freeport is also a legal subject in the indonesian human rights law and the international human rights law. pt freeport can be tried at the international human rights court for human rights violations committed against the papuan people so far. 39 dworkin, supra note 20. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 17 available online at http://journal.unnes.ac.id/sju/index.php/jils the same cases occur in borneo, sumatra, celebest and nusa tenggara. the majority of mining and plantation companies, coopting land belonging to indigenous peoples in various ways. they expel the native population in exchange for money and coercion. in fact, during the acquisition phase of the land, elements of human rights violations were often found. the incident keeps repeating without being able to find a solution. companies are reluctant to be responsible, the state is not brave enough to take action against naughty companies for various reasons. abroad, cases in brazil need to be used as reference material. brazil at that time carried out massive development in the framework of building sports facilities and football fields when the country was chosen to host the world cup. many customary lands are taken for reasons of state interest. in this case, many people were homeless and many human rights violations took place there. on the basis of mutual interests in order to succeed the annual event titled the world cup, the brazilian government relinquished responsibility for the human rights violations they had committed.40 the same motive also occurs in indonesia, where the government and companies do not want to be responsible for human rights violations. for the many cases of human rights violations, the united nations then passed the united nations guiding principles on business and human rights (ungp). ungp is a guideline for running a business while still paying attention to human rights values. broadly speaking, ungp contains 3 main pillars, namely protect, respect and remedy. through these 3 pillars, the united nations hopes that the company can run its business with continue to pay attention to human rights values. also in the ungp, the united 40 jdih bumn, “fgd bisnis dan ham di bumn : antara hak asasi manusia dan hak asasi perusahaan?,” jdih bumn, n.d., http://jdih.bumn.go.id/berita/fgdbisnis-dan-ham-di-bumn-antara-hak-asasi-manusia-dan-hak-asasi-perusahaan. http://journal.unnes.ac.id/sju/index.php/jils 18 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils nations seeks that the responsibility for fulfilling human rights can be borne by the company and not just the state. likewise if a human rights violation occurs, the company concerned can be punished with the applicable provisions. the company is also asked to return the rights it violates through prescribed methods (remedy). protect means the company must fulfill the rights of the employee. it also mean that the company must be punished with the applicable provisions while the company violates the rights of the employee or environtment around it. respect in ungp mean that the company must build a system or culture to promote human rights issues. such as, the company must give a permit for a pregnant employee or breast feeding employee. remedy pillar as mentioned before, the company is also asked to return the rights it violates through prescribed methods and so on. licensing principal based on social sensitivity in law, licensing/permits is one of the most widely used instruments in administrative law. licensing is the binding of a permit regulation generally based on the wishes of the legislator/government to achieve a certain order or to obstruct bad conditions.4142 so, the principal on licensing is that an action is prohibited, except as permitted, with the aim of being inside the 41 ridwan hr, hukum administrasi negara (yogyakarta, rajawali press, 2006). 42 darda syahrizal, hukum administrasi negara & peradilan tata usaha negara (yogyakarta, media pressindo, 2018), http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 19 available online at http://journal.unnes.ac.id/sju/index.php/jils provisions that are linked to the court can be meticulous given certain limits for each case.43 the government uses licenses as a juridical means to drive the behavior of the citizens. so that licenses can also be referred to as the approval of the authorities based on laws or government regulations, to in certain circumstances deviate from the provisions of the prohibition of legislation. according ten berge (1993), by giving licensing, the ruler allows the person who begs him to take certain actions that are actually prohibited. this stings the imposition of an action which in the public interest requires special supervision over it.44 tatiek sri djatmiati mentioned that juridically the character of the license is constitutive, namely the existence of rights and obligations that are born from the license so that certain activities can be carried out if they already have a license.45 licensing is an instrument used in administrative law. the government uses licenses as a juridical means to regulate the behavior of citizens.46 however, there has been a shift from licenses as a means of regulating community behavior into licenses as a source of income. this can be proven when the government simplifies the license to become a onestop service, whereas according to its character, licensing is an interconnected norm. so even though formally one-stop services shorten licensing time, however, materially, they have ignored the substance and law enforcement. 43 philipus m. hadjon, pengantar hukum perizinan (surabaya, penerbit yudika, 1993). 44 ten berge, pengantar hukum perizinan (surabaya, yuridika, 1993). 45 tatiek sri djatmiati, “perizinan sebagai instrumen yuridis dalam pelayanan publik,” speech on the inauguration of professors in administrative law (surabaya, 2007). 46 id. http://journal.unnes.ac.id/sju/index.php/jils 20 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils according to ten berge, by actions binding on a licensing system, lawmakers can pursue various objectives such as: 1. desire to direct (control) certain activities 2. preventing danger to the environment 3. desire to protect certain objects 4. have to divide a small object 5. briefing, by selecting people and activities47 the authors have stated earlier that the character of the license is constitutive, meaning that the rights and obligations are born of the licensing. certain activities are only possible if you have licensing. however, there has been a shift from licenses as a means of regulating community behavior into licenses as a source of income. this can be proven when the government simplifies the license to become a one roof service (one stop service), even though according to the character the license is a related norm (gelede normsteling). so, even though formally one roof services shorten licensing time, but materially have ignored the substance and law enforcement. in order to pursue investment and income of the country, the government often makes policies that benefit investors. for example, with the existence of a policy package that ignores existing licenses and cuts them into one-stop licenses. economically, this kind of policy is right to be used to shorten licensing and investment times, especially mining licenses, which in the beginning could last for years. because the character of the license itself is a related norm (gelede normsteling), meaning that one license requires other licenses. the legal regulations that are used as the basis for licensing are related laws and regulations that refer to the pattern of authority, procedures, substance and law enforcement.48 47 berge, supra note 44. 48 djatmiati, supra note 45. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 21 available online at http://journal.unnes.ac.id/sju/index.php/jils in general, the licensing system consists of prohibitions, agreements which are the basis of exceptions and licenses relating to licenses [berge]. the prohibition and authority of a government organ to deviate from the prohibition by giving permission must be stipulated in a law. this means that licenses must be based on law, not laws based on licenses. this is the juridical problem of the pt. freeport where the contract of work is in advance rather than its legislation, namely law number 1 of 1967 concerning foreign investment. this proves that the government in granting licenses is not based on the principle of carefulness and prudence as contained in the general principles of good governance (algemene beginselen van behoorlijke bestuur). whereas this principle is used as a basis for the government in issuing policies and decisions, without paying attention to this principle the government has committed treason against the law. the purpose of licensing as mentioned by ten berge is to prevent harm to the environment. therefore, the amdal document becomes the reference and guidelines, whether or not an area can be exploited should be based on the amdal document that is done scientifically. the big question is whether the papuan people have been informed of an amdal document from pt freeport? because the appointment of an amdal document to the community is an obligation, therefore the government means that it has committed arbitrariness. in licensing, there are also known inspraak or community participation, namely deliberations with interested parties, including the obligation to hear from the government by the public (public hearings). based on this, the authors argue that in the implementation of mining licenses must be strengthened to protect the community from the arbitrariness of the company, namely by: http://journal.unnes.ac.id/sju/index.php/jils 22 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils a. removing one-stop service patterns. although a one-stop service policy is used to improve the quality of public services, this policy can cause juridical problems in the future because it does not meet the principles of accuracy. one of the benefits of a one-stop service policy is that licensing services are fast and uncomplicated, even though the character of licenses is an interconnected norm. so it is necessary to observe the existing regulations starting from the law until the regional regulations and ministerial regulations are licensed or not. b. paying attention to the general principles of good governance. in granting licenses must pay attention to these principles, because this principle used as a basis for the government in making decisions concerning the lives of many people. c. involving society near the project. one of the most important steps to make a license is the way to get approval or grant from the society near the project. this steps actually included in the formal license method, but usually ignoring the truth. as usual, society is given some money or facilities by the corporate/company to fulfill the permit. to avoid this fact, ngo’s or academician must give some socialiszation to the society/community, especially to the indigenous people. d. amdal document. one of the obligations when a foreign investor establishes a company in indonesia is to include an amdal document. this document is a scientific study of the location that will used as a place of business against the possibilities that will occur from the activities carried out. e. obedient to ungp pillar. in addition to complying with technical procedures in making amdal documents, licensing must also be looked at in the 3 pillars in ungp, namely protect, respect and remedy. new license can be approved when the http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 23 available online at http://journal.unnes.ac.id/sju/index.php/jils company that applying for the licensing can show that the business they will be able to do can fulfill the 3 pillars of the ungp in a comprehensive and integrated steps. f. preparation event/inspraak. the stakeholders and the community must be involved in the licensing process, and this is intended to find out and hear what the community wants after the company's activities exist. so that there will not be a crime against humanity due to the expulsion of the community by the business activity, including compensation. g. controlling. the government as the party that issued the license must provide supervision on activities carried out by the applicant, and this is done to prevent the occurrence of irregularities committed during the activity/activity process. in addition to protecting the surrounding communities from being victims of systematic and massive crimes against humanity. supervision can be done in collaboration with ngos, ombudsmen and the community. h. making cooperation must be based on the law. this is very important to do, namely the creation of cooperation must be based on the provisions of the law so that the cooperation made not only benefits investors but at the expense of society. making a work contract with pt. freeport is one of them, the contract of work is not known in the contract law in indonesia, and the contents of the work contract have in fact contradicted article 33 paragraph (1) of the uud 1945 and law number 5 of 1960 concerning agrarian principles. meanwhile, in order to realize social sensitivity-based licensing, it must begin with building social capital in the community. according to zaka firma aditya (2018), the core of social capital lies in how the ability of society in an entity or group to work together to http://journal.unnes.ac.id/sju/index.php/jils 24 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils build a network to achieve a common goal of cooperation.49 it is built on positive and strong social norms and values, which strength will be maximal if supported by a proactive spirit of making relationships on the following principles: a. participation in a network in a society social capital is not human capital, it is not only built on the tendency that grows in a group. it is a shared norm that lies in the tendency that grows in a group to socialize as an important part of inherent values. the success of social capital depends on how to build a network of social relations. b. reciprocity in the concept of social capital, reciprocity is not only interpreted immediately as a contractually based relationship. good exchange between members of one group against another is not always done immediately, but can also be a combination of the short and long term. the spirit to help each other and the spirit to reciprocate will be a determining factor in the improvement of the quality of social capital. c. trust according to francis fukuyama (1995), trust is a trusting attitude in the community that allows the community to unite with each other to increase social capital.50 the level of trust between one community member and another member, the group will support community participation in order to build mutual progress, otherwise the destruction of the level of trust will become a social problem that can hinder the development of shared goals. qianhong fu divides three trust levels, namely: individual level 49 zaka firma aditya, penerapan modal sosial dalam praktek peradilan yang berbasis kepekaan sosial, 25 legality: jurnal ilmiah hukum 202, 200–219 (2018). 50 francis fukuyama, trust: social virtues and creation of prosperity (new york, free press, 1995). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 25 available online at http://journal.unnes.ac.id/sju/index.php/jils as individual wealth, personal variables and individual characteristics, level of social relations, trust is considered as a shared attribute to achieve a common goal, as well as the level of the social system, is the value of a broad society that develops and is facilitated by existing social system.51 d. social norms eric posner (2000) in his book entitled “law and social norms”mentioned that the norms are a set of rules that are alive and are recognized as a means for a social entity in society.52 social norms are usually institutionalized and contain social sanctions so as to prevent members of a society from deviating from it. this social norm will play a role in controlling people's behavior. e. values value is an idea that has been passed down from generation to generation considered true and essential for community members. value is a measure that can be used to measure a person's behavior in a social system. values always have ambivalent consequences, from optics which are considered positive, but from other optics are negative. values always play an essential role in human life in society. usually, certain values dominate developing ideas, domination will influence and shape the rule of conduct, the rules of behavior, and together will form a cultural pattern. f. proactive action in the perspective of social capital, proactive action has a higher level of quality when compared to participation in a network. proactive actions not only require someone to be involved but also seek ways for their involvement in a community activity. 51 aditya, supra note 49. 52 eric a. posner, law and social norms (cambridge, harvard university press, 2000). http://journal.unnes.ac.id/sju/index.php/jils 26 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils in addition, so that the implementation of licenses based on social sensitivity can be implemented well, it must be supported by the implementation of the principles of good governance. because, without this, the principle of licensing based on social sensitivity is only limited to ideas that cannot be implemented perfectly by the government. there are several principles and implementation of good governance that can support the implementation of licensing based on social sensitivity, including: a. principle of legal certainty the principle of legal certainty has two aspects, one of which is material law, and the other is formal law. aspects of material law relate to the principle of trust. while formal aspects are related to favorable decisions and must be arranged in clear words. the aspect of legal certainty in the material sense emphasizes the certainty of protection of citizens' rights and the fulfillment of expectations that have been grown by government organs. kuntjoro purbopranoto in his book entitled “beberapa catatan hukum tata pemerintahan” argues that the principle of legal certainty requires the respect of one's rights that have been obtained based on a government decision.53 that is, every decision made by the government is not revoked, unless there are important things that are the basis of the withdrawal and this must be proven through a legitimate judicial process. in the state administrative court, the principle of legal certainty is one of the test tools for judges in deciding state administrative matters. b. principle of public interest the principle of the implementation of public interest requires that in every decision which is the realization of the implementation of the principal duties of the official / agency, always prioritizing the 53 ridwan hr, supra note 41. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 27 available online at http://journal.unnes.ac.id/sju/index.php/jils public interest above personal and group interests. according to kuntjoro purbopranoto, the weakness of the principle of legal certainty is rigid and requires a long time to make changes, while the dynamics of people's lives continue to move and experience rapid changes, so that the government often acts or issues decisions based on policies to organize public interests.54 the principle of public interest is very important in its position in the administration of government. this principle is important for government officials as public servants, that is, they must prioritize public welfare by understanding and accommodating people's hopes and desires carefully. this principle requires that in carrying out government duties, the government always prioritizes public interests rather than personal interests or interests of certain groups. public interests are more important than personal interests, which does not mean that personal interests are not recognized as the essence of individual human beings. however, in the public interest there are restrictions on personal interests, because those interests are essentially included in the interests of the community and national interests based on the principle of social justice for all the indonesian peoples. c. principle of openness the principle of openness also provides an opportunity for the people to provide responses and criticisms built on the government, giving consideration to the running of the government. the government as the party that agrees must provide information needed by the community, requesting information provided to the community that is guaranteed by the act. in addition, the information conveyed by the government to the 54 id. http://journal.unnes.ac.id/sju/index.php/jils 28 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils public must be truthful, not engineered. the correct information must also be conveyed sincerely to all citizens / communities.55 the existence of rights from the community to obtain/obtain information is intended as part of the active participation of the community in improving and managing the country. however, the application of this principle must continue to heed the applicable legal, moral and social rules. that is, the openness of obtaining information must not exceed the limits that touch personal/group rights, protected the state's secrets and safety, which cannot/can be known, owned and utilized by unauthorized parties.56 d. principle of carefulness the principle of carefulness actually presupposes an attitude for decision makers to always act cautiously, namely by comprehensively considering all aspects of the decision material, so as not to cause harm to the community.57 the principle of carefulness requires that government bodies before taking a provision, examine all relevant facts and include all relevant interests in their consideration. if important facts are underresearched, that means not being careful. if the government mistakenly does not take into account the interests of third parties, that also means being inaccurate. in this framework, the principle of carefulness can require that those who are interested be heard (obligation to listen), before they are faced with an adverse decision.58 this principle requires carefulness of the government apparatus in every time they do an act. every time the actions of 55 idup suhady, kepemerintahan yang baik (jakarta, lembaga administrasi negara republik indonesia, 2009). 56 id. 57 safri nugraha, laporan akhir tim kompendium bidang hukum pemerintahan yang baik (jakarta, 2007). 58 philipus m. hadjon, pengantar hukum administrasi indonesia (yogyakarta, gadjah mada university press, 1993). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 29 available online at http://journal.unnes.ac.id/sju/index.php/jils the government apparatus which have legal consequences always give rise to rights and obligations, not only to themselves as legal subjects but also to other parties. conclusion licensing can be used as an instrument in preventing human rights violations caused by multinational companies considering the constitutive character of licensing (resulting in rights and obligations), namely by strengthening the licensing principle. the agreement on the contract of investor cooperation with the government that does not pay attention to the licensing aspect will result in injustice in the community and arbitrariness. in licensing must also pay attention to the general principles of good governance, community participation and legislation in force. there are several principles that must be built to create a strengthening of licensing principles based on social sensitivity, among of them: participation in a network in a society, reciprocity, trust, social norms, values, and proactive action. in addition, the implementation of mining permits must be strengthened to protect the public from the company's arbitrariness, namely by: (1) removing one-stop service patterns, (2) paying attention to the general principles of good governance, (3) involving society near the project, (4) strengthening amdal document, (5) obedient to ungp pillar where licensing must also be looked at in the 3 pillars in ungp (namely protect, respect and remedy), (6) controlling where the government as the party that issued the license must provide supervision on activities carried out by the applicant and this is done to prevent the occurrence of irregularities committed http://journal.unnes.ac.id/sju/index.php/jils 30 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils during the activity/activity process, and (7) making cooperation must be based on the law. references aditya, z. f. 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(2018). hukum administrasi negara & peradilan tata usaha negara. yogyakarta: media pressindo. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 33 available online at http://journal.unnes.ac.id/sju/index.php/jils tanuramba, r. r. (2020). legalitas kepemilikan masyarakat adat atas tanah ulayat menurut hukum agraria. lex privatum, 7(5), 25-33. https://ejournal.unsrat.ac.id/index.php/lexprivatum/article/view file/26985/26579 united nations. (2021). “rule of law and human rights.” united nations, retrieved from https://www.un.org/ruleoflaw/rule-oflaw-and-human-rights/. xanthaki, a. (2003). land rights of indigenous peoples in south-east asia. melbourne journal of international law, 4(2), 467-496. http://journal.unnes.ac.id/sju/index.php/jils 34 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils about authors zaka firma aditya, s.h., m.h. is a researcher at center for research and case analysis, indonesian constitutional court, jakarta, indonesia. he obtained his bachelor’s degree of law from universitas negeri semarang and master’s degree from universitas airlangga, surabaya indonesia. he also serving as one of the editors at constitutional law review, a prominent law journal published by constitutional court of republic of indonesia. his area of expertise concerning constitutional law, human rights law, as well as comparative law. some of his works have been published on several journals such as indonesian constitutional rights: expressing and purposing opinions on the internet (the international journal of human rights, 2020), monitoring of litigation costs and efforts to eradicate judicial corruption practices (indonesian journal of advocacy and legal services, 2020), and konseptualisasi omnibus law dalam pemindahan ibukota negara (jurnal ilmiah kebijakan hukum, 2021). sholahuddin al fatih, s.h., m.h. is a lecturer at faculty of law, university of muhammadiyah malang, indonesia. he also pursuing a doctoral program at university of brawijaya, malang, indonesia. he also serving as editor in chief legality journal at faculty of law universitas muhammadiyah malang. some of his works have been published on several journals such as parliamentary threshold in integrative legal perspective: indonesian case (jambe law journal, 2021), the urgency of redefinition of offense formulation of corruption in the law on the eradication of corruption (law research review quarterly, 2021), and economic analysis relationship in determining the size of parliamentary threshold in indonesia (indonesian journal of policy studies, 2020). http://journal.unnes.ac.id/sju/index.php/jils https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=ffyphcsaaaaj&sortby=pubdate&citation_for_view=ffyphcsaaaaj:mxk_kjrjxjic https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=ffyphcsaaaaj&sortby=pubdate&citation_for_view=ffyphcsaaaaj:mxk_kjrjxjic https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=ffyphcsaaaaj&sortby=pubdate&citation_for_view=ffyphcsaaaaj:8k81kl-mbhgc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=ffyphcsaaaaj&sortby=pubdate&citation_for_view=ffyphcsaaaaj:qxl8fj1gzncc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=ffyphcsaaaaj&sortby=pubdate&citation_for_view=ffyphcsaaaaj:qxl8fj1gzncc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=mlz24y8aaaaj&sortby=pubdate&citation_for_view=mlz24y8aaaaj:nb7kw1ujoq8c https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=mlz24y8aaaaj&sortby=pubdate&citation_for_view=mlz24y8aaaaj:u_35rykgdlwc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=mlz24y8aaaaj&sortby=pubdate&citation_for_view=mlz24y8aaaaj:u_35rykgdlwc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=mlz24y8aaaaj&cstart=20&pagesize=80&sortby=pubdate&citation_for_view=mlz24y8aaaaj:tfp_ist0succ https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=mlz24y8aaaaj&cstart=20&pagesize=80&sortby=pubdate&citation_for_view=mlz24y8aaaaj:tfp_ist0succ jils (journal of indonesian legal studies) volume 4(2) 2019 241 available online at http://journal.unnes.ac.id/sju/index.php/jils research article the darkest phase for family: child marriage prevention and its complexity in indonesia dian latifiani 1 1 department of private and commercial law, faculty of law, universitas negeri semarang, indonesia  dianlatif@mail.unnes.ac.id submitted: september 11, 2019 revised: october 15, 2019 accepted: november 1, 2019 abstract the research is intended to examine how child marriage happened and the implementation of policy to prevent the child marriage. the research also examine some cases concerning to child marriage and its complex condition, especially in some area of central java, indonesia. the method used to obtain the main data for the research is by interviewing and observing the main site location, at munding vilage semarang regency. some related government offices also become one of the sources of data. the research emphasized that child marriage occurs because of the education of the bridegroom's children, the local culture of marriage at the age of the child is better than marriage in high school, economic factors of the child's family and social or environmental factors of the child. impact of child marriages (women): vulnerable to divorce, psychological problems that are not yet stable in the management of the household, the breakup of formal education, reproductive health is not ready. the research highlighted that local culture is a challenge in opposing marriage at the age of the child. the research concluded that preventive efforts carried out by related institutions through education complaints in accordance with the main tasks of each related institution. keywords: child marriage; reasons of child marriage; preventive; integrated policy nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 4 issue 2, november 2019 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) 242 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 241 table of contents ………………………………...………….….. 242 introduction ………………………………………………………. 242 child marriage: reasons and problems ………………. 219 i. reasons of child marriage ……………………………… 244 a. why child marriage happened? ………………………………... 244 b. how the law speaks for child marriage? ……………………… 245 ii. child marriage prevention …………………………….. 250 a. an integrated policy to prevent child marriage ……………….. 250 1. parents/family elders ……………………..………………… 251 2. village officials ………………………………………………. 252 3. office of religious affairs (kua) in bergas district ………. 253 4. ministry of religion unit of semarang regency …………… 253 5. the board of education ……………………………………… 254 6. health office ………………………………………………….. 254 conclusion ……………………………………………………..…… 254 references …………………………………………………………… 255 copyright © 2019 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. how to cite: latifiani, d. (2019). the darkest phase for family: child marriage prevention and its complexity in indonesia. jils (journal of indonesian legal studies), 4(2), 241-258. doi: https://doi.org/10.15294/jils.v4i2.34708. introduction indonesia is one of the ten countries in the world with the highest absolute number of child brides. it is the second highest in asean after cambodia. it is estimatedly that one in five girls in indonesia are married before they reach their 18 years old. in the world, there are at least 142 million girls get married before adulthood in this decade. in indonesia, girls are the most vulnerable victims of child marriage, with prevalence: 1. girls from rural jils (journal of indonesian legal studies) volume 4(2) 2019 243 available online at http://journal.unnes.ac.id/sju/index.php/jils areas experience twice more vulnerability for marriage than those from urban areas. child brides are most likely to come from poor families. less educated girls and dropout from schools are generally more prone to become child brides than those attending school (candraningrum, 2016). however, unicef currently reports that this prevalence is shifting mainly in urban areas: in 2014, 25% of women aged 20-24 were married under the age of 18. the 2012 susenas data shows that around 11.13% of girls marry at the age of 10-15, and about 32.10% at the age of 16-18 years. the practice of child marriage also contributes to the high maternal mortality rate (mmr) in indonesia, which reached 359/100,000 of live births and 48 per 1,000 births for the number of births aged 15-19 years (candraningrum, 2016). the indonesian government bound by the convention on the rights of the child (ratified by presidential decree no. 36/1990), the cedaw convention (ratified by law no. 7 of 1984), the international covenant on civil and political rights (ratified through law no. 12 of 2005), and the international covenant on indonesian economic, social and cultural rights has ratified the rights of indonesian children bound to the fifth goal (containing 9 targets) of the agenda of the sustainable development goals (sdgs) in 2015-2030 that is achieving gender equality and empowering all women and girls, as specifically in the target 5.3 referred to the targets to eliminate all harmful practices such as child marriage, forced marriage, and female circumcision. in the further context, force marriage as well as child marriage in some cases also recognized as child trafficking (warria, 2017; setiawan, saifunuha, kautsar, & wulandari, 2019; prayogo, amanah, a., pradana, & rodiyah, 2019). many adolescents in munding village, especially in cemanggal hamlet, tend to go through child marriage. they do not really understand the meaning of a sacred marriage and the effects of early marriage, such as sexual relations at the age of under 20.the risk of child marriage will trigger the occurring cervical cancer and sexually transmitted diseases, not to mention other arising effects such as anxiety, stress, depression in the face of problems arising in the family that can result in separation and even divorce because of unstable emotions of the adolescents (minarni, 2014). munding itself is one of villages in bergas district, semarang regency of which area consists of 3 hamlets, they are gemawang, munding or krajan, and cemanggal hamlet. munding village has an area of 178,495 ha, with a yard area of 27,030 ha, a field area of 72,240 ha, and rice field area of 75,225 ha consisting of 3 rws and 18 rts. it has population of approximately 3327 people. munding village, which is administratively included in the bergas district area, has administrative borders to the north with gebugan https://www.sciencedirect.com/science/article/pii/s0190740916303929#! 244 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils and pagersari villages, to the east with bergaskidul village and to the south and west bordering bandungan district (munding.desa.id). this paper discusses the prevention of child marriage in the disruption era. the focus is on the problem (1) the reason for child marriage, (2) preventive of child marriage. in order to deal with these problems using approach qualitative with the type of sociological-juridical. the research was conducted in cemanggal hamlet, munding village, bergas office of religious affairs (kantor urusan agama, kua), and the ministry of religion of semarang regency as it was in accordance with the examined problems. child marriage: reasons and problems i. reasons of child marriage a. why child marriage happened? the purpose of marriage is to establish a happy, everlasting family. for this reason, husband and wife need to help and complement each other that each of them can develop the personality to help and achieve spiritual and material well-being. in this law, it is stated that a marriage is legal if it is administered according to the law of each religion and its beliefs; and besides, each marriage must be recorded according to the applicable laws and regulations. registration of each marriage is the same as important events in a person's life, such as birth, death as stated in the certificates, an official certificate which is also included in the registration. this law adheres to the principle of monogamy. only if desired by the person concerned, because the law and religion of the person concerned permits, a husband can have more than one wife. however, the marriage of a husband with more than one wife, even though it is desired by the parties concerned, can only be done by fulfilling the certain conditions and decided by the court. this law adheres to the principle, that the prospective husband and wife must have been mature by their physical and mind in order to get married, so that they can actualize well the purpose of marriage without ending in divorce and having good and healthy offspring. accordingly, marriage must be prevented between prospective under-aged married couples. moreover, marriage relates with population problems. it is evident that a lower age limit for a woman to get married results in a higher birth rate. therefore, this law sets the age limit for marriage for both men and women, which is 19 (nineteen) years old. from jils (journal of indonesian legal studies) volume 4(2) 2019 245 available online at http://journal.unnes.ac.id/sju/index.php/jils the law above, it is clear that marriage and all its provisions have been properly regulated that marriage must be carried out according to existing provisions. the marriage in which the prospective partner is under the age limit is included in early marriage, as the age of the prospective partner is still in the school-aged. b. how the law speaks for child marriage? child marriage is a marriage carried out beyond the provisions of the law and regulation, or a marriage under the age recommended by legislation (julijanto, 2015). law no. 1 of 1974 concerning marriage does not indicate a strict limit on the ―maturity‖ of prospective brides, that prospective brides who have not yet been ―mature‖ can hold a marriage if desired by the parties concerned, and the court can give them consent to marry. law no. 35 of 2014 concerning child protection, which came later, very much took into account the problem of maturing the age of marriage (hardani, 2015). this can be evident, among other things, in the principles underlying the establishment of this law, which is the principle of non-discrimination; the principle of the best interests of the child, the principle of the right to life, survival and development, and the principle of respect for the opinions of children. the law states that there are several children's rights to fulfill, they are: (a) the right to education, (b) the right to thought and expression, (c) the right to express opinions and be heard, (d) the right to rest and take advantage leisure time, associating with peers, playing, expressing, and being creative, and (e) the right to get protection. in relation to the marriage of under-aged children, the five children's rights above are violated. therefore, it is the obligation of parents to protect their children, educate, even support them in the point of stepping into maturity. children should be protected from things that have a negative impact on their development, both physically and psychologically. with underage marriage, the protection of sincere and true parents is reduced by switching to the husband. children should be protected from early marriages that have an impact on their development, both physically and psychologically. law no. 35 of 2014 concerning child protection has included criminal threats for violators. in the case of underage marriage, in article 82 of law no. 35 of 2014 stated that whoever commits seduction, deception, a series of lies, or persuades children to commit or allow obscene conduct, then they will be imposed with imprisonment by 3 (three) to 15 (fifteen) years and a maximum fine of rp. 300,000,000 (three hundred million rupiahs) and at least rp. 60,000,000 (sixty million rupiahs). thus, law no. 246 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils 35 of 2014 concerning child protection has been quite strict in giving sanctions for its violators. the negative impacts of early marriage include economic, social, health and cultural impacts in each region. the dominant factor of which child marriages occur is because of the lack of comprehensive early reproductive and sexual health education (pkrs) in order to provide the right understanding for adolescents on their choices (djamilah & kartikawati, 2014). in addition, the impact of early marriage triggers the quality of the household in less superior performance both in reproductive health, psychological and economic readiness of the family that it is vulnerable to have an impact of divorce and the neglected education quality for the children. moreover, it has an effect of the lacks of psychological maturity, ill-considered in solving their problems, less optimal in doing their chores. furthermore, their emotions have not been stable in resolving successive household problems (julijanto, 2015). there are differences in the age limit for marriage according to the marriage law and the child protection act. the age of marriage in law no. 1 of 1974 concerning marriage is stated in article 7 paragraph (1) and (2): 1. article 7 paragrah(1): marriage is only permitted if the man reaches the age of 19 and the woman reaches the age of 16; 2. article 7 paragraph (2): in the case of deviations in paragraph (1) this article may request dispensation to the court or other officials requested by both the prospective bride and groom‘s parents. meanwhile the child protection act in article 1 stipulates that ―children are those whose age below 18 (eighteen), including those who are still in the womb.‖ thus, a marriage performed before a person reaches 18 years old is categorized as a child marriage. when children are defined as individuals under the age of 18, marriage at age of 16 and 17 are categorized as the child-aged marriage. accordingly, it seems it is appropriate if there is an effort to increase the marriage age into above the child-age that there will be no child marriage. even though there is another concept in islam, namely aqil baligh, in which a person is considered mature after aqil baligh, that is, he must be responsible and carry out basic obligations. the concept of aqil baligh allows the person to be mature before 18 (the age limit of a child according to the child protection act). in general, baligh in men and women occurs at the age before 16. the author limits the discussion of the extent of the marriage age limit from aspects of the law/act of marriage and child protection. based on data obtained from munding village, office of religious affairs (kua) jils (journal of indonesian legal studies) volume 4(2) 2019 247 available online at http://journal.unnes.ac.id/sju/index.php/jils bergas and ministry of religion of semarang regency are described as follows. child marriage is carried out under the age of 18. the child marriage in the munding village is the most common in cemanggal hamlet. the following data is obtained: table 1 number of child marriage year number of child marriage 2013 13 2014 10 2015 8 2016 0 2017 2 2018 *per-august 0 source: personal interview with munding village head, august 2018 marriage is held at the age of 14-15. the factors triggering child marriage as emphasized by romdotun (2018) such as: (1) customary habits (culture) of marriage at young age, (2) lack of public insight about child marriage, (3) lower education level because the location of the cemanggal hamlet which is isolated away from secondary school. the reason for child marriage according to the head of office of religious affairs (kua) bergas as highlighted by amiruddin (2018) because of: (1) parental pressure/encouragement to marry in young age, (2) parents' concerns about their children to be out of date that they insist their children to marry, and (3) most actors have pre-marital pregnancy. meanwhile according to the ministry of religion, semarang regency, the reason for child marriage is among others (ahmadi, 2018): (1) the women have been pregnant before time, (2) they have already committed adultery, (3) lower education level of parents (graduate or not even graduate from elementary school), (4) the viewpoint of the surrounding environment that if the children are ―aged‖ yet unmarried is considered ―non-saleable‖ thus it is better to marry in young age. the level of education of those in child marriage is elementary school graduate and they break off school but work as a farmer, laborer or builder to help earning the family income. thus, it affects the psychic readiness of the bride and groom. correlation of age with the level of education of the bride and groom influences their maturity and they do not understand what they will deal with. nearly 70% in munding are committed to child marriage at the child-aged. thus, each prospective bride and groom must understand the marriage‘s rights and obligations. they must also grasp that the risk may cause undesirable effect such as divorce. such child marriage is at high risk of divorce. besides, the aspect of religious education also has an 248 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils effect in it. in addition, prior to marriage, you must get prepared in advance of what they will deal with. the choice to marry at young age is because the assumption that while their age are still relatively young that they can have grandchildren (children). even though the child marriage are vulnerable for divorce and their babies born in less quality of human resources (because the parental care is carried out by those whose education level is low). there is a complex correlation between child marriage and education in indonesia. girls who marry before the age of 18 (child marriage) have lower levels of educational achievement compared to unmarried girls, especially after elementary school. in addition, children who marry younger have lower educational achievement compared to children who marry in older age. girls tend to break off school after they marry (bps, 2016). developing cultural and religious values are also a driving factor for child marriage. for example, married women, although they are still young age, are more valued than unmarried ones. negative impacts such as divorce and widow status are never a problem. textual understanding of religious doctrine is one of the driving factors of the occurrence of underage marriage. parents often worry about children who have entered the age of bâligh, if they are not immediately married, they will act against religion (ramadhita, 2014). parents consider a woman if she is able to read and write is considered to be mature enough, without having to continue the next level, as the girl will later return to the home kitchen. most parents prefer to marry off their daughters at a relatively young age without being offset and paying attention to the child's physical and psychological readiness and maturity (rahmi, saroeng, & yoesoef, 2013). the reality on the field shows that underage marriages do not give benefits to family and household, as the marriage is actually vulnerable to divorce, and it is very easy to wobble in wading through the household. as the couple is unprepared to understand the meaning and wisdom of a marriage, they are not able to reach the desired marriage. thus, there will be various problems, for the couples who marry at a young age psychologically and economically are not ready to deal with new life in a family and society (maardi, 2012). meanwhile, a successful marriage would require maturity and responsibility physically and mentally to materialize ideal expectations in married life (sulaiman, 2012). in the perspective of tradition and culture, underage marriages often occur due to the cultural impulse in a community that places women as second class in which people avoid the stigma of being called ―spinsters‖ (unmarried women) and try to speed up marriages for various reasons (inayati, 2015). jils (journal of indonesian legal studies) volume 4(2) 2019 249 available online at http://journal.unnes.ac.id/sju/index.php/jils those who go through marriage, especially at the underage,their desire to continue school or pursue higher education will not be achieved or will not be materialized. this can take place, as their learning motivation will begin to lessen due to many tasks they have to do after marriage. in other words, underage marriage is a factor inhibiting the occurrence of education and learning processes (zulfiani, 2017). al-azhar's international islamic center for population studies & research stated that early childhood marriages have no strong and valid religious basis and arguments in an islamic perspective (ali, 2015). in the light of psychological aspect, the best age for marriage is between 19 and 25. the most basic psychological characteristics are about the patterns of emerging feeling, mindset and behavior among others: stability begins to arise and increase; more realistic self-image and attitude, more mature in dealing with problems, and more peaceful feeling (mapreane, 1982). child marriage has the following effects: (1). it tends to be very difficult to realize the goal of marriage well. the effect is that marriage only brings suffering. (2). it is difficult to have good and healthy offspring. the impact is that their children are vulnerable to disease. (3). it relates to population problems. it turns out that lower age limit for woman to marry results in very rapid population growth rate. regardless of the pros and cons of child marriage, unconsciously and determinedly, the child marriage can have negative impacts, including: (1). interrupted child education: early marriage causes children to drop out of school that it has an impact on the lower level of knowledge and access to information on children. (2). poverty: two children who get married early tend to have less income or even unemployed. it causes the child marriage vulnerable to poverty. (3). domestic violence: spouse‘s dominance due to unstable psychological conditions causes emotions that the bias has an impact on domestic violence (nasrullah, muazzam, khosa, & khan, 2017; yudhanti, arifin, & rismadini, 2017). (4). children‘s psychological health: the mothers who conceive at an early age will suffer from prolonged trauma, lack of socialization and crisis of confidence. (5). the born children: when the developing children suffer from the earlier process of pregnancy, there is opposition for nutrition with the fetus they bear, that the weight of pregnant women is often difficult to increase, which it can be accompanied by anemia due to nutritional deficiencies, and the risk of giving birth to babies with low birth weight. it was discovered that approximately 14% of babies born to mothers under the age of 17 are mostly premature (efevbera, 2017). children are at risk of suffering from mistreatment and or negligence. various studies reflect that children born from child marriages are at risk of having developmental delays, learning difficulties, behavioral 250 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils disorders, and tend to be parents at the child age. (6). reproductive health: pregnancy at the age of less than 17 increases the risk of medical complications, both in the mother and in the baby. pregnancy at extremely young age turns out to correlate with maternal mortality and morbidity. it was stated that girls aged 10-14 had a fivefold risk of dying during pregnancy or childbirth compared to the age group of 20-24, while this risk doubled in the age group of 15-19. it is because the child‘s reproductive organs are not well developed and the pelvis is not ready to give birth. data from unpfa in 2003 reflected that 15% -30% of early childbirths were accompanied by chronic complications, namely obstetric fistula. fistula is damage to female organ, which causes leakage of urine or feces into the vagina (mubasyaroh, 2016). ii. child marriage prevention a. an integrated policy to prevent child marriage situation of child marriages in indonesia in 2017, according to the central bureau of statistics (bps) is that, (1) the distribution of child marriages above 10% is evenly distributed throughout indonesia provinces (2) the distribution of child marriage rates above 25% is in 23 of 34 provinces in indonesia. this means 67% areas in indonesia is in emergency of child marriage. during 2017, alleviating the number of child marriages in indonesia did not progress even failed compared to 2015 with the numbers shown progressively increase (koalisi perempuan, 2017). hence, it is necessary to prevent child marriages. the preventive act is done holistically and synergizes with various agencies. it is impossible to solve by one party, as child marriage is a complex problem (amin, saha, & ahmed, 2018). the scheme of prevention as shown on figure 1. figure 1. diagram of integration policy for preventive child marriage involving various parties. source: personal research & observation, 2018 jils (journal of indonesian legal studies) volume 4(2) 2019 251 available online at http://journal.unnes.ac.id/sju/index.php/jils various backgrounds and various aspects cause integration policy as the settlement of child marriage, starting from law, culture, education, and economy. collective participation from various parties to deal with traditional practices that have been entrenched in the long term is a necessity, from both the government and private (non-government organizations-ngo) (hanafi, 2014). integration starts from internalization and awareness about the importance of readiness to come at marriage, one of them is with an age indicator. the ideal marriage age is not mentioned in the marriage law. however, it only mentions about the age limit for marriage. for men and women is 19 years. child age according to child protection law is under 18 years old. in detail, the role of each party is as follows: 1. parents/family elders they have an important role in preventive efforts to child marriage. the parents give permission for the first time, whether or not they can marry. however, in cemanggal hamlet, munding village, parents actually encourage to marry off their children at young age. the urge to have grandchildren while they are still young, instigates children to get married. and children tend to be obedient to their people. if parents have paradigm of psychological, physical, economic maturity as major principle in building the new family, then the child marriage can be eliminated. customary values that place children as property rights and assets that can be treated as desired by parents also need to be slowly eroded and deconstructed from the community mindset. it includes gender bias and man‘s preference over woman, which has implications for the low status of women in indigenous peoples. all of that needs to be changed through the synergy of governmental programs with institutions and customary stakeholders. because they are variables that contribute to the practice of underage marriage (hanafi, 2014). whereas mentioned in article 26 of the law on child protection that one of the obligations and responsibilities of parents is to prevent the occurrence of child marriage. the culture/habit of marriage in young age in the family also causes the born offspring to follow and carry out marriage at young age. marriage is legal event that initiates legal relations and consequences between the husband, wife and children. in the marriage law stated that the age of marriage is at least 16 for women and 19 for men. however, in the cemanggal hamlet community, a legal culture respects the marriage law. legal culture is one part of such vast human culture. it is the same general response from certain communities to legal symptoms. 252 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils the response is a unity of views on legal values and behavior. therefore, legal culture reflects the pattern of individuals‘ behavior as members of society who describe the same response (orientation) to the legal life practiced by the community concerned (hadikusuma, 1986). 2. village officials recommendation letter from the village/urban village is required for the administration of marriage registration to the office of religious affairs in district level. village officials (lurah) as the spearhead of marriage guidance that it will be carried out according to the mature age in marriage. it requires maturity in psychology, economic, sexual organs. if the administration of marriage file reveals that the age is still below 18, then the head of the village advises and provides insight into the consequences of marriage in the child-age. the target is for couples who want to get married to postpone their marriage in the point of reaching the adult-age limit. long-term plans for making village regulations on child marriage can be a strategic step to minimize child marriage. village regulation is a law as a tool of social control. in viewing law as a tool for human social control, the law is one of the social control tools. other tools still exist as there are still other social institutions recognized (e.g. beliefs, decency). social control is a normative aspect of social life. it can even be stated as a provider of deviant behavior definitions and the consequences thereof, such as various prohibitions, demands, and compensation (rahardjo, 1983). law as a means of social control gives the meaning that it can determine human behavior. this behavior can be defined as a matter that deviates from the rule of law. as a result, the law can provide sanctions or actions against the offender. therefore, the law also stipulates sanctions that the perpetrators must accept. it means that the law directs people to do things according to the rules to materialize the peace. the legal function as a tool of social control can work well if there are things in favor of it. the implementation of this function is closely related to good and clear legal material. in addition, the implementing party is very decisive. those who will implement this law also have their roles. a rule or law that has fulfilled the expectations of a community and received support may not necessarily work well if it is not supported by the implementing officials committed for the implementation of the law. this last thing is that most indonesian people often complain of. the officials seem to be influenced by other elements which should not be a determining factor, such as power, material and self-respect as well as collusion. the image of law enforcement is still vulnerable (aspandi, 2002). jils (journal of indonesian legal studies) volume 4(2) 2019 253 available online at http://journal.unnes.ac.id/sju/index.php/jils the munding local officials continue to make efforts in order to disseminate information to residents that they shall not marry at the childage as it is considered to have less good effect on their married life. the scope of its socialization material consists of 3 fields as follows: (1) religion (99% of the village population are muslim); (2) health; (3) education (chari, heath, maertens, & fatima, 2017). the local officials also cooperate with rural scholars and customary leaders to succeed in the goal of socialization related to delays in the event of marriage at the child-age that they will get prepared physically and mentally in the future. 3. office of religious affairs (kua) in bergas district outreach workers at office of religious affairs (kua) in bergas regularly conduct education program on marriage law and family law that the bride and groom can be well-prepared and establish a solid family resilience to produce a strong generation. if there is bride and groom at the age of marriage below the rules of the marriage law, then the kua takes a personal approach to them. in addition, this long-term plan in prevention needs to be held as a certificate for individuals/partners as a legal provision as well as being a condition for marriage and avoiding children to marry in young age. kua also has the role of disapproving marriage permits for those who register marriages at kua bergas district and that last year there were two cases which kua has rejected as they were not mature enough. kua as a government tool that registers marriage needs to strengthen the educational function in order to prevent child marriage (pranawati, 2018). the reinforcement is administered by developing education and building communication that people have a good perspective on marriage, which is marriage as grand agreement (mistaqanghalidza). as a sacred agreement, marriage is not just to bring together two people. however, it carries out the mandate of humanity, civilized beings and continuing moral life with civilization. 4. ministry of religion unit of semarang regency ministry of religion of social guidance division, conducts guidance— socialization awareness as follows: a) guidance on marital insight for premarried adolescents (19-20), b) pre-marital guidance by giving advice on the importance of marital readiness for prospective bride and groom from every sub-district in semarang regency (1 kua sending 10 prospective brides and grooms) (ahmadi, personal interview, september 6, 2018). https://www.sciencedirect.com/science/article/abs/pii/s0304387817300123#! https://www.sciencedirect.com/science/article/abs/pii/s0304387817300123#! https://www.sciencedirect.com/science/article/abs/pii/s0304387817300123#! https://www.sciencedirect.com/science/article/abs/pii/s0304387817300123#! 254 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils according to the main tasks and functions of guidance of the islamic community, one of them provide and guidance to establish ‗sakinah mawaddah warahmah‘ or family with tranquility, love and mercy. such guidance and education is expected to increase legal awareness. the problem of fostering legal awareness is closely related to various factors, especially the attitudes of law enforcers, meaning that law enforcement has a big role in fostering the growth of public awareness. legal awareness in this context means the awareness to act in accordance with legal provisions and function as a bridge connecting legal regulations with the behavior of members of the community as it reflects on legal development certainly from the existence of community life in which the law applies and changes according to the dynamics in social life. nowadays, there is still a gap between the supposed law (das sollen) and the actual law (das sein). this gap certainly occurs because of the disharmony between law in the books and law in action. in line with that, legal development efforts are required, which are often interpreted as carrying out certain changes to society (law is a tool of social engineering), and definitely the development expected by law is a change in society that is in order, controlled, effective and efficient (ancient, 2017) 5. the board of education it provides information about the importance of education at the advanced level in both junior high school and senior high school and even diploma equalization program by ‗kejar paket program.‘ the high cost of education is not an excuse for breaking off school. the tendency in the cemanggal hamlet, if they have passed elementary school, it is considered sufficient and does not need to attend secondary school. however, one of the children‘s rights pursuant to article 9 paragraph (1) of law no. 35 of 2014 concerning child protection are to obtain education, but because of the local culture make children lethargic to attend school, even though parents have an adequate amount. the board of education can provide vocational training services and apprenticeship programs for young girls from under privileged families to empower them economically (kalamar, lee-rife, & hindin, m.j., 2016; kristiana, 2019). 6. health office the health office through the local health center conducts education program on the urgency of the maturity of reproductive organs in marriage. moreover, it also psychologically affects the establishment of a strong jils (journal of indonesian legal studies) volume 4(2) 2019 255 available online at http://journal.unnes.ac.id/sju/index.php/jils family. for prospective brides and grooms, they must have reproductive health checks at the health center. when they have obtained the proof that the examination has been done, marriage can be processed. sex education, reproductive health, and premarital preparation need to be incorporated into the school curriculum to create awareness among young people about the dangers and risks of underage marriage through sex education, reproductive health, and premarital programs (serhapp). they are lack of psychological maturity, ill-considered in solving their problems, less optimal in doing their chores. their emotions have not been stable in resolving household problems in succession, making them vulnerable to divorce (julianto, 2015). unwanted pregnancies due to a lack of understanding of reproductive health that is common in children is one of the main factors of child marriage (djamilah & kartikawati, 2014). the integration policy if carried out in synergy will prevent child marriages. thus the protection of children's rights can be materialized. children can enjoy a pleasant school time with their friends to achieve their goals. a high level of education can produce building capacity capable. conclusion the research concluded and emphasized that child marriage occurs due to (1) customary habits (culture) marrying at young age, (2) lack of public insight into child marriage, (3) lack of access and interest in continuing education. preventive efforts are carried out with an integration policy involving various parties related to child marriages they are parents, village officials, office of religious affairs (kua), ministry of religion, department of education, and health 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(2017). forced child marriages as a form of child trafficking. children and youth services review, 79(august), 274-279. https://doi.org/10.1016/j.childyouth.2017.06.024 https://doi.org/10.15294/jils.v2i01.16638 https://ejurnalunsam.id/index.php/jhsk/article/view/136 https://www.sciencedirect.com/science/article/pii/s0190740916303929#! https://www.sciencedirect.com/science/journal/01907409 https://doi.org/10.1016/j.childyouth.2017.06.024 jils (journal of indonesian legal studies) volume 6(1) 2021 157 available online at http://journal.unnes.ac.id/sju/index.php/jils research article human attitude and technology: analyzing a legal culture on electronic court system in indonesia (case of religious court) dian latifiani faculty of law, universitas negeri semarang, indonesia doctoral student at universitas diponegoro, semarang, indonesia  dianlatif@mail.unnes.ac.id submitted: jan 27, 2020 revised: february 18, 2021 accepted: may 1, 2021 abstract the use of technology for the judiciary is now a necessity. in indonesia, information technology is used for court administration to achieve fast, simple, and low-cost trials. the supreme court issued a supreme court regulation as the legal basis for the administration of administration and electronic trials. this is done to make it easier for people to seek justice. the electronic court began in 2018. its implementation is carried out in stages, starting with certain religious courts as an introduction. subsequently carried out for all religious human rights issue in various context: national and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 1, may 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0003-2119-2964 158 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils courts in indonesia. the problems of this study are: (i) the condition of the religious court from the perspective of legal culture, (ii) reforming the religious court in the perspective of legal culture, (iii) renewing the legal culture of religious courts using an electronic system / e court. the social setting is the office of pa kendal class 1 a and pa pemalang class 1 a. the study shows; (i) the reality of the number of case registrations in 2019 at the kendal religious court class 1a shows that the legal culture of registering using the e-court is 117 cases (3.4%) whereas 5 cases litigation (0.13%). the reality of the legal culture of case registration at the pemalang religious court class 1a with e court totaling 94 cases (1.8%). whereas the legal culture of the trial by e-litigation at the pemalang religious court since the issuance of perma 1 of 2019 has only 4 cases (0.1%), (ii) the development of legal culture in the electronic system of religious courts is carried out by developing an internal and external legal culture in terms of pre-registration, court administration, trial. development of an internal legal culture for judges, e-court operator officers, e-court corner officers, public service officers to invite justice seekers to use e-court in its resolution. the service officer also helps justice seekers to make an email as an electronic domicile as a requirement for e-court registration. development of an external legal culture through socialization. socialization for advocates is carried out through media meetings, flyers, and online web media. as well as mandatory online/e-court registration. development of external culture for the community (other users) at the village level in the jurisdiction of the local religious court. the effort is to work at the village level to conduct socialization about electronic courts in the village by the religious courts. keywords: renewal; religious court, legal culture http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 159 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 157 table of contents ……………………………..…...…….. 159 introduction ………………………………….……………. 159 conditions of religious judicial in the perspective of legal culture ……………………… 164 development of religious judicial culture with electronic systems ……………………………… 169 conclusion ……………………………………………..……. 179 references ……………………………………….…………… 180 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. how to cite: latifiani, d. (2021). human attitude and technology: analyzing a legal culture on electronic court system in indonesia (case of religious court). jils (journal of indonesian legal studies), 6(1), 157-184. https://doi.org/10.15294/jils.v6i1.44450 introduction the religious courts are one of the pillars of judicial power and have the duty and authority to examine, adjudicate and resolve any http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/jils.v6i1.44450 160 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils particular case based on islamic law1. the birth of law number 3 of 2003 which was enhanced by law number 50 of 2009 concerning the second change of law no. 7 of 1989 concerning religious courts has further strengthened the existence of religious courts in terms of the function, position, and authority of the judiciary (quasi rechtpraak) and became the executive power in the non-judicial technical field. the implementation of a good religious court is if 3 (three) main requirements are fulfilled in carrying out its duties and functions, namely: 1) orderly administration of justice, both in the secretarial work unit area and in the administrative unit area; 2) the appropriateness of the application of civil procedural law in religious courts; 3) the implementation of religious court decisions. these three things must run simultaneously in line with and in line with the pace of demands for legal services2. the procedural law that applies in the religious court is following article 54 of law no. 50 of 2009 is the procedural law that applies in the general court unless specifically regulated in this law. so that the sources of procedural law in religious courts include hir, rbg, rv, bw, regulations from the supreme court (sema, perma and fatwa), book ii on the implementation of duties and administration of religious courts, and other religious court procedural law books. sema and perma ri as long as it concerns civil procedural law and material civil law, can be used as procedural law in judicial practice regarding a legal problem faced by judges3. gatot supramono said the meaning of article 54 of law no. 50 of 2009 in the phrase "unless specifically regulated in this law" means that in addition to general civil procedural law (i), special law (i) also applies as regulated in law no. 7 of 1989 and its changes4. judiciary in indonesia adheres to the principle of fast, simple, low cost, however, there is no measure of norms or values used in 1 rum dkk nessa, membumikan hukum acara peradilan agama di indonesia (2016). 2 ahmad mujahidin, pembaharuan hukum acara peradilan agama (2014). 3 ernawati, hukum acara peradilan agama (2020). 4 abdullah tri wahyudi, hukum acara peradilan agama (2018). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 161 available online at http://journal.unnes.ac.id/sju/index.php/jils determining how a trial can be categorized as simple, fast, and low cost5. the supreme court stipulated perma no.1 of 2019 concerning the administration of cases and trials in court electronically to realize this principle. however, the legal culture of religious courts does not fully support the administration of cases and trials electronically, so it is necessary to renew the legal culture of religious courts to realize the administration of cases and trials electronically in the national legal system. the author considers it necessary to carry out a cultural renewal of the legal culture of religious courts from the philosophical, juridical, and sociological aspects. 1. philosophical aspects pancasila as the state's philosophy underlies the 1945 constitution as amended as an ideal foundation in reforming the legal system. the pancasila philosophical values expressed in the opening of the 1945 constitution became the reference for the supreme court in formulating the vision and mission as well as the 2010-2035 blueprint. the vision of the judiciary has been formulated by the leadership of the supreme court on september 10, 2009, which refers to the second and fourth articles, namely "the realization of the supreme indonesian judiciary body". while the mission of the judiciary in 2010-2035, namely, i) maintaining the independence of the judiciary; ii) provide just legal services to justice seekers; iii) improving the quality of leadership in the judiciary; iv) and increase the credibility and transparency of the judiciary. the vision and mission are stated in the blueprint of the supreme court of the republic of indonesia. among them, carry out simple, fast, timely, low cost, and proportionate case process management and administration; "manage and develop competent human resources with objective criteria, so that they 5 dian latifiani et al., advocate as law enforcer in the implementation of e-court, 11 int. j. innov. creat. chang. 439–449 (2020), https://www.ijicc.net/images/vol11iss4/11436_latifiani_2020_e_r.pdf. http://journal.unnes.ac.id/sju/index.php/jils 162 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils are created" personnel6 "justice with integrity and" professional; reorientation "excellent public service; have information management that guarantees" accountability "credibility and transparency; modern with integrated it-based". the religious court as a valid pillar of the supreme court should always strive to reform the legal culture7 in facilitating justice seekers based on the noble values of pancasila. 2. sociological aspects the empirical reality of the civil 8procedure law enforcement process (pre-trial/registration and trial) is influenced by internal and external factors. people in the judicial environment such as judges, substitute clerks, clerks as internal communities. justice seekers/communities who resolve disputes/petitions with absolute competence in the religious court as an external community. educational facilities that have been provided regarding it-based and modern information management through the e court corner (administration of cases and trials electronically) not used by seekers of justice. they tend to prefer to register cases through service officers even though they have to queue all day long9. there is an effort to have an e-court system (administration of cases and trials electronically) to realize the principles of fast, simple, and low cost for justice seekers. 3. juridical aspects 6 amirov zafar aktamovich, the role of legal personnel in raising legal awareness in the society, 02 am. j. polit. sci. law criminol. 52–55 (2020), https://doi.org/10.37547/tajpslc/volume02issue12-08 %0d%0a. 7 zhuldizay t. kulzhanova & gulbaram t. kulzhanova, legal culture as the determinant of value orientations in youth in the society of the transition period (philosophical analysis), 11 int. j. environ. sci. educ. 4997–5008 (2016). 8 eshmuhamad kadirov, problems of forming legal awareness and improving the legal culture of civil servants : current status and development trends, 18 int. j. progress. sci. technol. 194–196 (2020). 9 dian latifiani, the small claim court to realize the fast and simple principle in civil disputes resolution, 18 south east asia j. contemp. business, econ. law 7–12 (2019), https://seajbel.com/wpcontent/uploads/2019/05/seajbel-18_35.pdf. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 163 available online at http://journal.unnes.ac.id/sju/index.php/jils sources of civil procedural law/formal law of religious court covers hir, rbg, rv, bw, book ii on the implementation of duties and administration of religious courts, regulations from the supreme court (sema, perma and fatwas); perma no. 2 of 2008 concerning compilation of sharia economic law, perma no. 14 of 2016 concerning procedures for settlement" dispute "sharia economics; perma no. 2 of 2015 concerning simple lawsuit, perma no. 5 of 2016" about "sharia economic judge certification, perma no. 1 of 2016 concerning mediation, perma no. 3 of 2018 concerning the administration of cases in court electronically, perma no. 1 of 2019 concerning electronic case and trial administration, perma no. 4 of 2019 concerning amendments to the supreme court regulation no. 5 of 2019 concerning guidelines for adjudicating applications for marriage dispensation and several other regulations. the laws and regulations to realize the principle of fast, simple, low cost are quite complete, especially with the existence of perma 1 of 2019 which regulates electronic trials. however, since the end of 2019 until this writing has not been maximally conducted electronic trials. esmi said that the environment or situation limits the law which causes a mismatch between what should be (das sollen) and what is real (das sein)10. the reality that occurs in the religious court 11includes the legal culture of the parties in the petition/lawsuit case and the judges/religious court officers are reluctant to be active in seeking updated information/based on the latest regulations regarding the 10 derita prapti rahayu, budaya hukum penambang timah inkonve nasional (tl) terhadap mekanisme perizinan berdasar perda 493–504 (2012). 11 dian latifiani, contributing factors of mediation failure in the tribunal in divorce cases, 15 south east asia j. contemp. business, econ. law 2014–2017 (2018), https://seajbel.com/wpcontent/uploads/2018/06/law-98.pdf. http://journal.unnes.ac.id/sju/index.php/jils 164 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils judicial administration process so that they encounter problems in cases from pre-registration to verdict/ruling. 12 conditions of religious judicial in the perspective of legal culture to explore and reveal the hidden meanings behind the conditions of the religious court13, the author determines the domain "perceptions of the religious court community as a culture of law". the legal culture according to friedman is seen from several perspectives. according to him, the national legal culture is distinguished from the legal sub-culture which has a positive or negative effect on national law14. also, friedman distinguishes between internal legal culture and external legal culture. the internal legal culture is the legal culture of community members who carry out specific legal duties, such as police, prosecutors, and judges in carrying out their duties, while the external legal culture is the legal culture of the society in general, for example, how is the attitude and knowledge of the public towards tax provisions, divorce15, and so on. he distinguishes between traditional legal culture and modern legal culture16. with the existence of various legal systems in a single political community, it 12 anna piszcz & halina sierocka, the role of culture in legal languages, legal interpretation and legal translation, 33 int. j. semiot. law 533–542 (2020), https://doi.org/10.1007/s11196-020-09760-3. 13 rafat y. alwazna, culture and law: the cultural impact on islamic legal statements and its implications for translation, 2 int. j. leg. discourse (2017). 14 nurul aiqa mohamad zain et al., developing legal framework for e-court in judicial delivery, 7 int. j. eng. technol. 202 (2018). 15 dian latifiani, the darkest phase for family: child marriage prevention and its complexity in indonesia, 4 jils (journal indones. leg. stud. (2019), http://journal.unnes.ac.id/sju/index.php/jils. 16 madina kozhukhova & miras zhiyenbayev, conceptualizing legal culture and legal awareness: meaning and structural components, 55 shs web conf. 02009 (2018), https://www.shs-conferences.org/10.1051/shsconf/20185502009. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 165 available online at http://journal.unnes.ac.id/sju/index.php/jils is called legal pluralism. legal pluralism can be horizontal or vertical. on the horizontal side, each subsystem or sub-culture has the same legal force, while the vertical one has different legal strength. the perspective of legal culture is classified in the internal and external legal culture. 1. internal legal culture internal legal culture is linked to legal culture that is carried out by human resources in the court environment. the author classifies technical and non-technical legal cultures. 1) technical a) pre-registration internal legal culture technical matters related to case handling and trial administration. handling of cases is a process of pre-registration of cases (preparation of making legal document files; lawsuit, replies to copies, duplicates, conclusions, reconventions) to the issuance of court products in the form of decisions/decisions. in pre-registration, people seeking justice 17who do not use the services of a legal attorney (because they are unable) can ask for help at posbakum (legal aid center). however, not all religious courts provide posbakum. the following is the technical internal legal culture in the pre-registration process: (1) religious courts that provide posbakum the assistance service in posbakum is limited to making a lawsuit, it does not arrive at answers, copies, duplicates, conclusions. posbakum is passive in providing services, meaning that if justice seekers do not ask for assistance in making answers, replicates, duplicates, and conclusions, then posbakum does not assist. this results in letters that are independently prepared by justice seekers that do not 17 peter j guffin, digital court records access: social justice and judicial balancing, 72 maine law rev. 87 (2020), https://digitalcommons.mainelaw.maine.edu/mlr?utm_source=digitalcommons .mainelaw.maine.edu%2fmlr%2fvol72%2fiss1%2f4&utm_medium=pdf&utm _campaign=pdfcoverpages %0d%0a. http://journal.unnes.ac.id/sju/index.php/jils 166 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils meet the formal and material requirements of legal document files (answers, copies, copies, conclusions). so that the legal culture of the role of posbakum is not optimal in carrying out its function for realizing an effective, efficient, and able judiciary accounted for. (2) religious courts that do not provide posbakum justice seekers who resolve their cases in religious court who do not provide posbakum, in making legal documents make their own by: (a) the parties receive guidance from ptsp officers (onestop integrated services) (b) the parties made their lawsuit through the application in the religious court the legal culture of ptsp officers does not actively guide justice seekers in making a lawsuit comprehensively so it still leaves problems. for example: a divorce suit for a couple who has a minor, does not completely contain the rights of the child in the posita and the lawsuit petitum. whereas article 86 paragraph 1 of law no. 7 of 1989 provides an opportunity to file a lawsuit together. (3) the judge electronic trials or e-litigation are still rarely used. not all the internal legal culture of the judges examining cases offers both parties to use e litigation because the judge concerned is not yet proficient in e litigation procedures. so even though registration with e court does not necessarily use e litigation18. 2) nontechnical secretariat of the class ia religious court has the task of providing support in the fields of administration, organization, finance, human resources, and facilities and infrastructure 18 s. charmonman & p. mongkhonvanit, harnessing the power of information technology for efficiency in e-court and e-trial., 24 int. j. comput. internet manag. 1–7 (2016), http://ijcim.th.org/past_editions/2016v24n2/24n2page1.pdf %0d%0a. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 167 available online at http://journal.unnes.ac.id/sju/index.php/jils within the class ia religious court. "the secretariat of the class ia religious court, consisting of a. subdivision of planning, information technology, and reporting; b. subdivision of personnel, organization, and administration; and c. general and finance subdivision. the subdivision of planning, information technology, and reporting has the task of carrying out the preparation of implementation materials, programs, and budgets, managing information technology and statistics, as well as implementing monitoring, evaluation, and documentation as well as" reporting. the legal culture of the availability of human resources in the information technology field does not always have an educational background in the it field, for example, religious scholars become it staff so that they are not maximal in carrying out their duties. human resources that are not following the needs of information technology cause problems in administration and electronic trials. apart from that, other problems that arise such as slow internet network, it infrastructure for each court is not always complete, the means of examining witness evidence via teleconference are also not optimal. 2. legal culture external external legal culture is a legal culture practiced by society in general. in this case, the parties are both material and formal. 1) pre-registration the legal culture of making legal documents carried out by the parties was not comprehensive in compiling a lawsuit. so that there are still problems that can be resolved in one lawsuit. the parties only think that they can be done for certain purposes. and there is no activity to ask the court officers or posbakum. for example, a wife sues for divorce from her husband and has a minor. just apply for a break-up without an application for children's rights, in fact, article 86 paragraph 1 of law no. 7 of 1989 provide an opportunity to file a lawsuit together. http://journal.unnes.ac.id/sju/index.php/jils 168 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 2) manual case registration and e-court. a) manual case registration is carried out by coming directly to the pa according to the plaintiff's domicile. the number of cases registered manually was 18,183. b) new e-court registration is only done by a lawyer the inauguration of the e-court application on august 13, 2018, by the head of the ma prof. dr. m hatta ali, sh, mh with the legal basis of perma no. 3 of 2018 concerning electronic case administration in courts further refined with perma no. 1 of 2019 concerning the administration of cases and trials in courts electronically and perma no. 3 of 2018 is revoked and declared invalid. case registrations using e-court in the entire pta semarang environment were 7,661. the data shows that the number of manual case registrations is higher than e-court. the legal culture of the parties who do not use a legal attorney prefers to register manually/come in person, queue, pay an advance and hear manually rather than using the ecourt application. on april 2020 that the district pemalang pa case since 2019; manual registration of 5235 cases (98,2%), e-court 94 cases (1,8%), manual trials 5325 (99,9%) e litigation 4 cases (0,1%). in pa kendal on april 2020, registration in 2019 with manual as many as 3376(96.6%), e court registration 117 cases (3.4%), e litigation 5 cases (0.13%). even though article 6 of perma no. 1 of 2019 provides an opportunity for parties who do not use their attorney to do so with e court19. the problems encountered by the parties, among others; the parties cannot use it, find it difficult to use e court, especially when e payment / down payment of court fees. 3) e-payment/down payment of court fees the supreme court makes an mou with partner banks in the down-payment of cases. the supreme court signed a memorandum of understanding with pt. bank mandiri, pt. 19 susanto & edy mulyanto, prevent corruption through the e-court system (study in jabodetabek court), 358 adv. soc. sci. educ. humanit. res. vol. 358 3rd int. conf. glob. law local wisdom (icglow 2019) 59–62 (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 169 available online at http://journal.unnes.ac.id/sju/index.php/jils bank syariah mandiri, pt. bank bri syariah, pt. bni (persero) tbk., and pt. bank bni syariah and addendum to a memorandum of understanding with pt. state savings bank (persero) tbk. and pt. bank rakyat indonesia (persero) tbk. an unprepared online application system causes the parties to face difficulties in making court fee down-payment payments. 4) the judge the defendant's legal culture undermined the first trial resulted in: (a) the defendant did not come at the trial first so it cannot requested his consent to conduct trials electronically. (b) the defendant came during the trial but did not have an electronic domicile (c) the defendant came but didn't want to bother. feel more satisfied if the trial is face to face. development of religious judicial culture with electronic systems there are quite a lot of problems/challenges facing the indonesian nation at this time to carry out national development. especially in the problem of the development of national law, at least three major problems can be identified, namely20: 1. the problem of improving the quality of law enforcement in concreto (problem (law) 2. issues of development/renewal of the national legal system; and 3. the problem of multi-complex globalization development, the problem of internationalization of law, globalization / transnationalization of crime, and the problem of hitech / cybercrime that keeps growing 20 barda nawawi, arief, pembangunan sistem hukum nasional (2002). http://journal.unnes.ac.id/sju/index.php/jils 170 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils development/renewal of the national legal system which in essence is a renewal/sustainable development (sustainable reform/ sustainable development). in legal reform/development, it is always related to the development/development of a sustainable society as well as the continuous development of scientific activities/activities and the development of philosophical thought /basic ideas / intellectual conceptions. therefore, law reform is closely related to sustainable society/development, sustainable intellectual activity, sustainable intellectual philosophy, sustainable intellectual conceptions/basic ideas. this study takes several generations. because it requires a long period and discussion of law seminars every year. the reform of the national legal system must be able to realize the national goals of the indonesian state as stipulated in the preamble of the 4th paragraph of the 1945 constitution. moh. mahfud md said, in its position as the basis of the state and state ideology, pancasila must be used as a paradigm (frame of mind, source of values , and direction) in legal development, including all efforts to reform the law, because it contains four guiding principles, namely 21 : 1. the law must protect the entire nation and guarantee the integrity of the nation, and therefore laws are not allowed to plant the seeds of disintegration; 2. the law must be able to guarantee social justice by providing special protection for the weak so that they are not exploited in free competition against the strong; 3. the law must be developed democratically while building democracy in line with the nomocracy (rule of law); and 4. the law must not be discriminatory based on any promotional ties and must encourage the creation of religious tolerance based on humanity and civility 22. a. the national legal system when viewed from the substance of the 21 nyoman serikat putra jaya, politik hukum (2016). 22 dian latifiani, civil rights conservation of female correctional facility inmates in semarang, 192 194–197 (2018), https://www.atlantis-press.com/proceedings/icils18/25903166. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 171 available online at http://journal.unnes.ac.id/sju/index.php/jils law, is based on pancasila as a legal ideal. the pancasila national legal system is based on three pillars/values of the balance of pancasila23, as follows: a. oriented to divine values (moral religious) b. oriented to human values (humanistic); and c. oriented to social values (nationalistic; democratic; social justice). the legal system/system in indonesia that is not oriented towards the 3 pillars/values of approach/soul (spirit) cannot be said to be a national legal system, even though it was made by the indonesian legislature. the legal system that operates in society is the embodiment of the ideals of the laws adopted in the community concerned into a set of various positive legal rules, legal institutions, and processes (the behavior of the government bureaucracy and community members). spirit of law (rechtsidee) means that in essence law as a rule of public behavior is rooted in ideas, feelings, intentions, creations, and thoughts of the community itself ". pancasila is the essence of the noble values of this nation, so every law and practice should be able to follow the values of pancasila. in its development, there are also religious values in pancasila, including a culture that is thick with religious values, this is because pancasila is extracted from every heart of the indonesian nation.24 the court as a judicial institution in the indonesian constitution has a strategic function and role in examining, deciding, and resolving disputes that occur between members of the public and between the community and institutions, both government and non-government institutions 25. in civil cases, law enforcement procedures begin from the receipt of a lawsuit or petition until the execution of the verdict. if a series of procedures/mechanisms for implementing the system and 23 nawawi, arief, supra note 20. 24 esmi warassih, ilmu hukum kontemplatif (surgawi dan manusiawi”, penelitian hukum interdisipliner (2016). 25 m. natsir asnawi, hermeneutika putusan hakim (2014). http://journal.unnes.ac.id/sju/index.php/jils 172 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils procedure for a case26 handling is hampered or does not work properly, of course, it will affect the outcome of a judicial process. the legal culture referred to here is within the scope of the internal legal culture. internal legal culture is the culture of the actors who enforce the law in court27. the content of this legal culture consists of elements of values and attitudes in the form of demands originating from the interests of legal actors against legal institutions. these demands are influenced by the factors of orientation, views, feelings, attitudes, and behavior of actors towards legal institutions28. these factors are based on the magnitude of the influence of the drive for interests, values, ideas, attitudes, desires, expectations, and opinions of actors about the law 29. the concept of internal legal culture is used to analyze the values and attitudes of stakeholders in the religious courts in looking at the problems of court administration and trials electronically. satjipto rahardjo stated the factors that determine the filing of a case to court, namely: 1) knowledge of the law, 2) financial capacity, and 3) legal culture30. the reality in society is that only those with legal knowledge will be able to bring their problems to court. ignorance of the law causes the problems experienced not to be recognized as a legal problem that can be asked for resolution by the court. this condition is related to the legal typology in modern society, which is increasingly formal, and therefore special knowledge is needed to be 26 dian latifiani, permasalahan pelaksanaan putusan hakim, 1 j. huk. acara perdata adhaper (2015), https://jhaper.org/index.php/jhaper/article/view/1. 27 maya indrasti notoprayitno & faridah jalil, legal culture perspective in implementation of inclusive education in indonesia, 388 3rd int. conf. spec. educ. 122–127 (2019), https://www.atlantis-press.com/proceedings/icse-19/125928840 %0d%0a. 28 mitra sharafi, parsi legal culture , constitutionalism , and the rule of law, leg. stud. res. pap. ser. (2019), https://ssrn.com/abstract=3417287 %0d%0a. 29 sergeeva mg et al., legal culture formation of a future specialist, 7 humanit. soc. sci. rev. 13–19 (2019), http://www.giapjournals.com/index.php/hssr/article/view/hssr.2019.742. 30 amran suadi, court decision publication and judicial reform based on electronic court and its implication to public trust in indonesia, 6 j. soc. sci. res. 365–373 (2020). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 173 available online at http://journal.unnes.ac.id/sju/index.php/jils able to see something like a legal case or case31. the financial factor of justice seekers means that litigation, especially civil court cases, require costs, such as registration fees, processing fees, calling fees, and others. the term "no fee, no case", is a legal term mandated by statutory regulations. even though there are provisions regarding the waiver of court fees for people seeking justice who are economically disadvantaged, this is an exception to the basic provisions. the third factor, namely the legal culture, also determines. without the support of an appropriate legal culture32, a person will not bring his problem to court. an appropriate legal culture, meaning following the method of settlement of cases used, following attitudes and values that exist in society regarding the law. although there are provisions regarding the waiver of court fees for people seeking justice who are economically disadvantaged, this is an exception to the basic provisions. the third factor, namely the legal culture, also determines. without the support of an appropriate legal culture, a person will not bring his problem to court. appropriate legal culture, that is, following the method of settlement of cases used, following attitudes and values that exist in society regarding the law. although there are provisions regarding the waiver of court fees for people seeking justice who are economically disadvantaged, this is an exception to the basic provisions. the third factor, namely the legal culture, also determines. without the support of an appropriate legal culture, a person will not bring his problem to court. appropriate legal culture, that is, in accordance with the method of settlement of cases used, in accordance with attitudes and values that exist in society regarding law33. 31 kukuh santiadi, expanding access to justice through e-court in indonesia, vol1 prophet. law rev. (2019). 32 otong rosadi, sahnan sahuri siregar & rina asmeri, padang advocates ’ perception toward the implementation of e-court policy as efficiency effort in law enforcement, 17 palarch’s j. archaelogy egypt/egyptology 7085–7101 (2020), https://www.archives.palarch.nl/index.php/jae/article/view/1981 %0d%0a. 33 anton aulawi & muhamad asmawi, effectiveness of e-court in improving service quality at serang religious courts, 410 adv. soc. sci. educ. humanit. res. vol. http://journal.unnes.ac.id/sju/index.php/jils 174 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils several things that need to be done to support efforts to civilize and legal intelligence society are: 1. efforts to civilize the law must be carried out with appropriate and effective methods, by utilizing various media and infrastructure as well as institutions that live and grow in society. 2. socialization of various legal materials, efforts need to be continuously made so that every latest development regarding legislation is known and understood by the public. thus, the availability and easy access to legal material information is an important part of the effort to civilize public law. 3. the legal culture of society must be built in parallel with the increase in professionalism. this will greatly affect the community towards the law itself. 4. it is necessary to carry out a pattern and program of legal civilization in an integrated, planned, and based on facts of legal problems that occur. 5. legal culture must be done from an early age and starting from the household as the smallest miniature of the rule of law, to reach the current and future legal culture society 34. legal development cannot be separated from the development of society, where at this time various new phenomena have emerged as a result of advances in technology and information marked by the era of informatics technology in cyberspace (cyberspace) with the presence of an interconnected network (internet) that uses paperless communication (paperless document) 35. legal development is also closely related to the growth of science today which affects the life of 410 1st int. multidiscip. conf. educ. technol. eng. (imcete 2019) 212–215 (2020), http://creativecommons.org/licenses/by-nc/4.0/ %0d%0a. 34 iman pasu purba, penguatan budaya hukum masyarakat untuk menghasilkan kewarganegaraan transformatif, 14 j. civ. media kaji. kewarganegaraan 146– 153 (2017). 35 efa laela fakhriah, kapita selekta hukum acara perdata indonesia (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 175 available online at http://journal.unnes.ac.id/sju/index.php/jils the global community, among others, with advances in technology36 and information such as the presence of an interconnected network which has implications for paperless communication such as e-mails, websites, video teleconferences. this all affects the legal culture of society which in turn will have different handling and enforcement of the law 37. according to the author, efforts to develop a legal culture of religious justice electronically must be following the efforts of civilizing and community legal intelligence carried out by the ministry of law and human rights. in the report of the meeting of the consultation on the implementation of legal development at the ministry of law and human rights in bogor in 2009 by way of 38 : 1. efforts to civilize the law must be carried out with appropriate and effective methods, by utilizing various media and infrastructure as well as institutions that live and grow in society 2. socialization of various legal materials, it is necessary to continue efforts so that every latest development regarding legislation is known and understood by the public. thus, the availability and easy access to legal material information is an important part of the effort to civilize the law of society. 3. the legal culture of the community must be built in parallel with the increase in the professionalism of law enforcers and bureaucracy. because this professionalism will greatly affect public confidence in the law itself. 4. it is necessary to carry out a pattern and program of legal civilization in an integrated, planned manner and based on the facts of legal problems that occur. thus, the existence of legal extension functional staff needs to be realized immediately. 36 mark patrick dillon & david beresford, electronic courts and the challenges in managing evidence. a view from inside the international criminal court, 6 int. j. court adm. 29 (2014). 37 amran suadi, pembaruan hukum acara perdata di indonesia menakar beracara di pengadilan secara elektronik (2019). 38 jawardi jawardi, strategi pengembangan budaya hukum (strategy of law culture development), 19 j. penelit. huk. jure 517–538 (2019), https://ejournal.balitbangham.go.id/index.php/dejure/article/view/77. http://journal.unnes.ac.id/sju/index.php/jils 176 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 5. legal culture must be carried out from an early age and starting from the household as the smallest miniature of the rule of law, to reach the current and future legal culture society. according to barda nawawi, the development of national legal culture consists of five sectors: 1. development of legal philosophy and national law science. 2. development of legal awareness and law-abiding behavior. 3. development/fostering of libraries, publishing, and legal informatics. 4. development and fostering of the legal profession. 5. development and fostering of legal education. several solutions that can be taken to improve the legal culture, include: a. by changing the legal education model, which so far has only studied law. b. making laws following living values / laws that live in society against the enactment of the law. c. by improving the way of building a legal culture, namely by starting to build a legal culture through the family. development of legal culture of religious courts with an electronic system based on pancasila values is achieved by: 1. development of a pre-registration legal culture (preparation of application/lawsuit letters) 2. building a culture of court administration law 3. development of a trial law culture the following is the description: 1. development of a pre-registration legal culture (preparation of application letters/lawsuits) the legal culture that occurs in religious courts39 is related to pre-registration that is not comprehensive in compiling a petition/ lawsuit. so, it is necessary to build an internal legal culture of religious courts in the form of increasing the activeness of ptsp officers, posbakum to assist/guide material parties in compiling 39 muhamad iqbal & wawan supriyatna, creating an efficient justice system with ecourt system in state court and religious court of rights, 3 int. j. arts soc. sci. 354–361 (2020), http://www.ijassjournal.com/ %0d%0a. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 177 available online at http://journal.unnes.ac.id/sju/index.php/jils application/lawsuit letters. efforts to offer assistance by ptsp or posbakum officers are carried out with smiles, friendliness, and patience to material parties. because the material parties are not familiar with the judicial environment. confusion and lack of understanding can occur because this is the first time you come to court. education to the military can be done by making comprehensive examples of various types of the lawsuit and petition templates that are printed later posting on the information board or the website40. so that the material parties in preparing the lawsuit/petition are not confused and following what is needed to get their rights and do not leave problems. the external legal culture of religious courts is manifested by increasing awareness to the parties about the real needs that are being pursued in the proceedings at the religious courts. various types of lawsuits and requests are posted on the religious courts website. starting from the type of case, the requirements needed, how to prepare a lawsuit/petition. so that the parties get an understanding electronically through the web site. the external legal culture of religious courts is manifested by increasing awareness to the parties about the real needs that are being pursued in the proceedings at the religious courts. various types of lawsuits and requests are posted on the religious courts website. starting from the type of case, the requirements needed, how to prepare a lawsuit/petition. so that the parties get an understanding electronically through the web site. the external legal culture of religious courts is manifested by increasing awareness to the parties about the real needs that are being pursued in the proceedings at the religious courts. various types of lawsuits and requests are posted on the religious courts website. starting from the type of case, the requirements needed, how to prepare a 40 monika singh et al., success factors for e-court implementation at allahabad highcourt, proc. 22nd pacific asia conf. inf. syst. oppor. challenges digit. soc. are we ready?, pacis 2018 (2018), https://aisel.aisnet.org/cgi/viewcontent.cgi?article=1136&context=pacis2018 %0d%0a. http://journal.unnes.ac.id/sju/index.php/jils 178 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils lawsuit/petition. so that the parties get an understanding electronically through the web site. 2. building a court administration law culture the internal legal culture of religious courts is built by: 1) improved hard skills and soft skills of staff in charge of it by participating in technical guidance 2) improving the quality of it infrastructure so that the availability of computers and network distribution is realized 3) optimized the e court corner in each pa with active staff who are ready to serve external legal culture is built by: 1) educate the parties about e court which is simple, fast, so there is no need to come to the pa following the jurisdiction. education about e-court starts with integrated menus starting from e filling, e payment, e summon 2) setting up a strong it network of partner banks as banks that facilitate the payment of court fee down-payments 3. development of a trial legal culture / e-litigation development of an internal legal culture for the trial electronically41 1) improving the soft skills of substitute clerks and judges in operating the e-litigation system is a new thing. 2) strengthening it infrastructure starting from internet bandwidth, laptops / pcs so that they are not constrained in the electronic trial process development of an external legal culture of electronic42 trials: 1) education in the form of counseling, socialization through the website, or making applications about e litigation. because with e litigation the parties/attorneys do not need to come to court. only upload a special power of attorney (if using a legal 41 d.r. jones, protecting the treasure: an assessment of state court rules and policies for access to online civil court records, drake law rev. 375–422 (2017). 42 iqbal muhammad, susanto & sutoro muhammad, functionalization of e-court system in eradicating judicial corruption at the level of administrative management, 19 din. huk. (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 179 available online at http://journal.unnes.ac.id/sju/index.php/jils attorney), lawsuit/petition. answer. replicates, duplicates, conclusions. 2) offer the proceedings electronically to the parties at the first trial conducted face-to-face. efforts to reform the legal culture of religious courts are based on the philosophical value of pancasila. based on the theory of lawrence m. friedman, legal culture can be in the form of a work culture of law enforcers and society in a law enforcer. for this reason, the work culture of the leadership, judges to staff in the religious courts aims to realize the principle of fast, simple, low cost43. also, to improve services to the community seeking justice through seven priority programs, namely; development of an integrity zone towards an area free from corruption (wbk) and a clean and serving bureaucratic area (wbbm), information services through court websites, timely settlement of cases, one-day minutes (one day publish), electronic case administration (e-court) and implementation of case tracking information system (sipp). conclusion the reform of the religious court is carried out with the philosophical values of pancasila. namely indonesian cultural values but global in nature. the administration of justice and trial underwent a renewal. initially using manual, namely, registration is done by registering directly at the court office in the area where the plaintiff/applicant is domiciled. however, since 2018 court administration in the form of case registration can be done online, so there is no need to come to the court office even though the plaintiff/applicant is abroad. development of an electronic religious 43 ahmad tholabi kharlie & achmad cholil, e-court and e-litigation: the new face of civil court practices in indonesia, 29 int. j. adv. sci. technol. 2206–2213 (2020), http://sersc.org/journals/index.php/ijast/article/view/3639 %0d%0a. http://journal.unnes.ac.id/sju/index.php/jils 180 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils court legal culture through internal and external legal culture so that a religious court legal culture with an electronic system is realized. references aiqa mohamad zain, n., satirah wan mohamad saman, w., farik mat yatin, s., rahman ahmad, a., saifuddin, n., nor haliza wan mokhtar, w., & nurul emyliana nik ramlee, n. 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(2018b). contributing factors of mediation failure in the tribunal in divorce cases. south east asia journal of contemporary business, economics and law, 15, 2014–2017. https://seajbel.com/wp-content/uploads/2018/06/law-98.pdf latifiani, d. (2019a). the darkest phase for family: child marriage prevention and its complexity in indonesia. jils (journal of indonesian legal studies), 4(2), 241-258. https://doi.org/https://doi.org/10.15294/jils.v4i2 latifiani, d. (2019b). the small claim court to realize the fast and simple principle in civil disputes resolution. south east asia journal of contemporary business, economics and law, 18(4), 7–12. https://seajbel.com/wp-content/uploads/2019/05/seajbel18_35.pdf latifiani, d., widyawati, a., fibrianti, n., & ningsih, a. s. (2020). advocate as law enforcer in the implementation of e-court. international journal of innovation, creativity and change, 11(4), 439–449. muhammad, i., susanto, & muhammad, s. 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(2019). expanding access to justice through e-court in indonesia. prophetic law reviewie, vol1(iss1). https://doi.org/10.20885/plr.vol1.iss1.art5 sergeeva, m. g., bondarenko, n. g., shebzuhova, t. a., vartumyan, a. a., shuisky, a. s., & mazurenko, a. p. (2019). legal culture formation of a future specialist. humanities & social sciences reviews, 7(4), 13–19. https://doi.org/10.18510/hssr.2019.742 sharafi, m. (2019). parsi legal culture , constitutionalism , and the rule of law. legal studies research paper series, 1479. https://ssrn.com/abstract=3417287 %0d%0a singh, m., sahu, g. p., dwivedi, y. k., rana, n. p., & tamilmani, k. (2018). success factors for e-court implementation at allahabad http://journal.unnes.ac.id/sju/index.php/jils 184 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils high-court. proceedings of the 22nd pacific asia conference on information systems opportunities and challenges for the digitized society: are we ready?, pacis 2018. https://aisel.aisnet.org/cgi/viewcontent.cgi?article=1136&context =pacis2018 %0d%0a suadi, a. (2019). pembaruan hukum acara perdata di indonesia menakar beracara di pengadilan secara elektronik. jakarta: kencana. suadi, a. (2020). court decision publication and judicial reform based on electronic court and its implication to public trust in indonesia. the journal of social sciences research, 6(64), 365–373. https://doi.org/10.32861/jssr.64.365.373 susanto, & mulyanto, e. (2019). prevent corruption through the ecourt system (study in jabodetabek court). advances in social , in science, education and humanities research, volume 358 3rd international conference on globalization of law and local wisdom (icglow 2019), 358, 59–62. https://doi.org/10.2991/icglow19.2019.15 wahyudi, a. t. (2018). hukum acara peradilan agama. bandung: mandar maju. warassih, e. (2016). ilmu hukum kontemplatif (surgawi dan manusiawi): penelitian hukum interdisipliner. yogyakarta: thafa media. about authors dian latifiani, s.h., m.h., is a doctoral student at faculty of law, universitas diponegoro semarang, indonesia. she also working as a lecturer at department of private and commercial law universitas negeri semarang, indonesia. his are of research interest concerning civil procedural law, electronic court law, and family law. some of his research have been published on several journals, such as, protecting the consumer rights in the digital economic era: future challenges in indonesia (jambura law review, 2021), istbat of marriage implementation for marriage after enactment of law no. 1 of 1974 (journal of islamic law studies, 2021), advocate as law enforcer in the implementation of e-court (international journal of innovation, creativity, and change, 2020), and analisis hukum islam terhadap faktor putusnya tali perkawinan (analysis of islamic law on factor of marriage divorce) (samarah: jurnal hukum keluarga dan hukum islam, 2019). http://journal.unnes.ac.id/sju/index.php/jils https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=srabalgaaaaj&sortby=pubdate&citation_for_view=srabalgaaaaj:-f6ydrqryjwc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=srabalgaaaaj&sortby=pubdate&citation_for_view=srabalgaaaaj:-f6ydrqryjwc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=srabalgaaaaj&sortby=pubdate&citation_for_view=srabalgaaaaj:wf5omc3nynoc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=srabalgaaaaj&sortby=pubdate&citation_for_view=srabalgaaaaj:wf5omc3nynoc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=srabalgaaaaj&sortby=pubdate&citation_for_view=srabalgaaaaj:5nxa0vek-isc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=srabalgaaaaj&sortby=pubdate&citation_for_view=srabalgaaaaj:5nxa0vek-isc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=srabalgaaaaj&sortby=pubdate&citation_for_view=srabalgaaaaj:eqolee2rzwmc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=srabalgaaaaj&sortby=pubdate&citation_for_view=srabalgaaaaj:eqolee2rzwmc jils (journal of indonesian legal studies) volume 6(1) 2021 229 available online at http://journal.unnes.ac.id/sju/index.php/jils book review money laundering: how it works and legal instruments, a review book "hukum money laundering dalam dimensi kepatuhan", dr. go lisanawati, s.h., m.hum & njoto benarkah, s.t., m.sc., setara press malang, 2018, x+84 pages, isbn: 978-6026344-54-0 andra maulana aditya transnational law studies center, semarang, indonesia  andramaulana@gmail.com submitted: dec 18, 2020 revised: february 2, 2021 accepted: april 12, 2021 abstract this book contains practical knowledge about anti-money laundering in indonesia and the global context. this book, in addition to presenting various theories regarding the crime of money laundering, human rights issue in various context: national and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 1, may 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-0376-5928 230 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils also presents various cases and their analysis to provide a comprehensive understanding. keywords: money laundering, corruption, criminal 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. corruption eradication strategy, what's interesting about this book? a. anti-money laundering law based on international and domestic constellation in this chapter, we are going to analyze what act is to control money laundering, but first let us jump into the definition of money laundering itself. money laundering is the process of making large amounts of money generated by a criminal activity, such as drug trafficking or terrorist funding, appear to have come from a legitimate source. the money from the criminal activity is considered dirty, and the process "launders" it to make it look clean. money laundering is itself a crime. therefore, the doer of the crime made the money gone by hiding all trace of the money to avoid criminal act. after we understand the basic definition of money laundering, we must understand the danger caused by this activity. the danger cause by this activity is discussed many conventions and around the http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 231 available online at http://journal.unnes.ac.id/sju/index.php/jils world. there are international and domestic convention that discussed the criminal act of money laundering. based on the international conventions, money laundering is categorized as serious crime meaning its range is very wide and even though basically this activity directly did not harm anyone or a company, not like any other crime like murder, thievery, or robbery that cause harm to the victim. according to imf, money laundering can cause many problems like: 1. policy errors because a mistake in the data measurement as the act of money laundering 2. volatility to the exchange rate because of the uncontrollable cross border fund transfers 3. problems with the tax collection because of manipulation of fake money reports these are just a few of many problems caused by money laundering. and as you can see it covers a very wide range of problems, that is why it is categorized as serious crime. according to j.e. sahetapy, the criminal act that controls money laundering is covered based on: 1. act conversion, transfer or concealment of the true elements of ownership of property 2. knowledge that the property is derived from one or more specified types of underlying criminal activity 3. objective to conceal the illicit origin of the property at first, the act of money laundering is first controlled based on vienna convention that gives a brief understanding on the criminal act of money laundering. it states that criminal act of money laundering can only be applied to the wrongful use of drugs. this act then is later used by other countries that then started to criminalized money laundering of drugs activity. then other acts, conventions, standards, even model laws started to appear. these acts appeared just to highlight money laundering in general including the effort that must be done by a country to erase money laundering and earn the title as “safe haven country” indonesia on the other hand realized how important it is to eradicate money laundering by making the act law no 15 of http://journal.unnes.ac.id/sju/index.php/jils 232 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 2002about criminal act of money laundering and is now changed to law no 25 of 2003 about the change of law no 15 of 2002. but after an evaluation done by the government, it turns out that the act can’t be used effectively which made this act change yet again in 2010 to law no 8 of 2010 concerning prevention and eradication of money laundering. this act emphasized to social approach on prevention and eradication. when this act is published and running, the regime is called anti money laundering regime which is until now is still running smoothly. b. elements of criminal act of money laundering based on the law no 8 of 2010 states that money laundering is all doings that fulfil all elements of a criminal act stated in this constitution. this means that money laundering must fulfil all that is stated on the law no 8 of 2010 to be criminalized. the law no 8 of 2010 had different sections; criminal act of money laundering (article 3-article 5), and criminal act which are related to the criminal act of money laundering (article 11-article 16). article 3 stated all persons that did transaction, put, divert, entrust, change the form of the assets he/she knows is done by criminal doings with the intention to hide where the assets is coming from are an act of criminal. based on what is stated before, money laundering is done by vanishing all trace of where the money is obtained to avoid any suspicion to where the money came from. this criminal act of money laundering is sui generis meaning that to investigate a money laundering case, the perpetrators doesn’t have to be investigated or sued. this is explained in an article 69 and article 75 explicitly. article 4 stated all persons that hide the assets that he/she knows is done by criminal doings are an act of criminal. this act is only intended to a person or a corporation that facilitate the doers of a money laundering by taking contribution of vanishing the trace of the assets. article 5 stated all persons that receive assets he/she knows is done by criminal doings are an act of criminal. this act is intended http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 233 available online at http://journal.unnes.ac.id/sju/index.php/jils to the passive perpetrators which means that he/she were not aware of the money laundering act before. article 11 stated all judge, investigators, officials, prosecutors must conceal all documents regarding their duty. this act is known as secrecy of position but is not applicable to all officials do it because they must according to the constitution. c. methods of criminal act of money laundering there are three phase that is used in the constitution of money laundering act which then become more of a method rather than phase, here are 3 methods used: 1. placement: the placing of an asset that came from criminal act to a financial system or a bank 2. transfer: effort to transfer the asset that came from criminal act 3. integration: effort to use the asset that came from a criminal act that has succeeded to be placed in a financial system to make it look like clean money various kinds of financial transactions a. kinds of financial transactions 1. suspicious financial transactions a. financial transaction that are deviated from profile, characteristics, or habits of financial transactions b. financial transaction that is done or cancel which are suspected came from a criminal act c. financial transaction that is requested by the authority for it to be reported to the reporting party because it involved assets that was suspected came from a criminal act 2. cash financial transactions http://journal.unnes.ac.id/sju/index.php/jils 234 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils based on article 1 (6) law no 8 of 2010 cash transaction is a financial transaction that is done by using paper-based asset. this transaction can be either acceptance or withdrawal. 3. abroad fund transfer financial transaction based on article 1 (1) law no. 3 of 2011 fund transfer is a series of activities that start with commands from a sender with the intention of transferring a number of funds to the receiver. 4. cash carrying from/to outside indonesia based on law no 8 of 2010 all person that carry cash in a minimal of rp. 100.000.000,00 must tell the directorate general of customs to be permitted. after that the directorate must write a report about what is mentioned above. 5. transactions that must be reported by the provider based on article 27 law no 8 of 2010stated that item/service provider must file a report of the transactions done by the user of the service in the minimal of rp. 500.000.000,00 to the authority law profession as reporting parties in an anti money laundering regime a. profession and their role according to government regulation no 43 of 2015, profession have a really important role in the process of the prevention of money laundering. profession is thought to be “gatekeepers” in the process of money laundering preventions meaning that it is the vanguard, the first to face money laundering. but on the other hand, the title “gatekeepers” can also be exploited by the perpetrators. that’s why a law profession must be aware of how important it is to play a good role in society. as mentioned in law no. 18 of 2003 about advocates as part of law enforcement that play a role in law enforcement in a different function than police, prosecutors, etc. the function of advocate is http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 235 available online at http://journal.unnes.ac.id/sju/index.php/jils mentioned in article 5 which stated advocate as a device in the judicial process that has the same position as all of the other law enforcement. theodorus yosep stated that advocate earn the title as officium nobile meaning it is a noble profession. officium nobile is a fusion of noble value and status as a leading person, they help people when needed with the full intention of helping them not because of money, even though some did. theodurus yosep also stated the full role of advocate is to: 1. fight for human rights 2. implement advocate code of ethic 3. hold the advocate oath 4. prioritize idealism 5. maintain independence 6. improve the community service of having justice 7. maintain personality as a noble profession 8. keeping good relation with client 9. give legal service 10. give legal advice 11. give legal consultation 12. give legal opinion a notary give legal service to the community by making authentic deeds and other authorities that can only be done by a notary, as mention in article 1 no 1 uu no 30 year 2004 about notary position. according to chapter 15, a notary’s role is: 1. a notary is authorized to make authentic deeds about all doings, agreements that is required to fulfil the constitution rules which are prohibited to be shared to other institutions 2. validate signature and establish the certain of a letter’s date by filing it to a special book 3. make an exact copy of a document which are validate and signed by the notary 4. make a legalization copy of the real document 5. make a deed regarding to land law 6. make a deed regarding auction treatise 7. give community service base on the constitution http://journal.unnes.ac.id/sju/index.php/jils 236 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils law profession only asked to make a report for the use of services if indicate fulfil these 3 elements: 1. did transactions and do it in the name of service user 2. do one of the following: a. property purchase or sale b. management of asset or other financial service products c. management of checking account, savings account, deposit account, and securities account d. management of a company e. company establishment, purchase, and sale 3. fulfil the elements of suspicious financial transactions as mentioned in chapter 1 no 5 law no 8 of 2010 jo. chapter 1 no 8 pp no 43 of 2015 data of book author : dr. go lisanawati, s.h., m.hum amd njoto benarkah, s.h., m.sc. published year : 2018 title : hukum money laundering dalam dimensi kepatuhan language : indonesia, bahasa publisher : setara press, malang isbn : 978-602-6344-54-0 page : x+84 pages http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 279 available online at http://journal.unnes.ac.id/sju/index.php/jils research article confronting e-government adoption in indonesian local government martitah matitah1 , saru arifin2 , slamet sumarto3 , widiyanto widiyanto4 1 faculty of law, universitas negeri semarang, indonesia 2 faculty of law, pecs university, hungary 3 faculty of social sciences, universitas negeri semarang, indonesia 4 universitas terbuka, jakarta, indonesia  martitahlatif@yahoo.co.id submitted: june 15, 2021 revised: september 21, 2021 accepted: oct 18, 2021 abstract indonesia passed an e-government law in 2018, ushering the country's society into the information age across a range of sectors, including social, economic, communication, transportation, literacy, and public services. this transformation has benefited enormously from the facilitation of information technology in terms of productivity, comfort, compassion, and time elapsed. local governments in indonesian legal thoughts amid various world legal thoughts published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 2, november 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0001-7398-1100 https://orcid.org/0000-0003-2730-0110 https://orcid.org/0000-0002-3132-4345 https://orcid.org/0000-0002-9356-7713 280 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesia, on the other hand, are slowing the adoption of egovernment, which has progressed to the second stage of implementation, which is the introduction or integration of crosssectoral systems. this article claims that local governments face challenges in this second stage as a result of departmental egos that make it difficult to unite around shared objectives. the whole government approach is suggested in this paper as a concrete policy strategy for eradicating sectoral egos within local government departments. it places a premium on collaboration in order to accomplish the government's vision and objectives. keywords: e-government, road map, local government, public services http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 281 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract …………………………………………………….…. 279 table of contents ……………………………..…...….…... 281 introduction ………………………………….…………….. 282 short-tail e-government …………….………………… 285 indonesia's e-government architecture ……….. 287 indonesia's roadmap to e-government ………….. 289 local government e-government challenges 295 conclusion …………………………..………………………. 302 references ………………………………………………….… 304 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. how to cite: martitah, m., arifin, s., sumarto, s., & widiyanto, w. (2021). confronting e-government adoption in indonesian local government. jils (journal of indonesian legal studies), 6(2), 279306. https://doi.org/10.15294/jils.v6i2.47795 http://journal.unnes.ac.id/sju/index.php/jils 282 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction indonesia is adamant about developing a transparent, accountable, and participatory governance system. indonesia is attempting to use information technology to build a nation and improve its effectiveness and performance. presidential regulation no. 3 of 2003, which defined a national policy and strategy for the development of e-government, reflected this initiative. this presidential regulation is the government's response to the community's demand for more effective, productive, quick, affordable, and timely government services. additionally, the introduction of e-government in indonesia establishes a direct line of communication between the public and the government. according to yunita and aprianto's study, e-government adoption is generally very slow in indonesia. the slow pace of adoption of e-government by local governments at all levels, from planning to maturation, consolidation, and use, reflects these findings1. in this case, loura's research confirms that e-government in indonesia is still in the interaction stage and has not yet progressed to the transaction, let alone transformation, stage 2. djunaedi explained that the growth rate of e-government is influenced by several elements such as (i) data system infrastructure, (ii) legal infrastructure, (iii) institutional infrastructure, (iv) human 1 novi prisma yunita & rudi dwi aprianto, kondisi terkini perkembangan pelaksanaan e-government di indonesia : analisis website, 2018 semin. nas. teknol. inf. dan komun. 329–336 (2018). 2 loura hardjaloka, studi penerapan e-government di indonesia dan negara lainnya sebagai solusi pemberantasan korupsi di sektor publik implementation study on egovernment in indonesia and other countries as a solution in eradicating corruption in public sector), 3 j. rechtsvinding 435–452 (2014). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 283 available online at http://journal.unnes.ac.id/sju/index.php/jils resources infrastructure, (v) technology infrastructure, and (vi) leadership and strategic thinking 3. according to zaenal a. hasibuan, the local government's commitment to e-government implementation is vital to the program's success. due to the difficulty of reforming a bureaucratic culture that has long extended traditional service patterns to onlinebased services, despite the fact that this policy has been in place for 17 years, dating all the way back to 2003 4. national and local governments have pioneered the development of public services through communication and knowledge networks. at least in java, some regional leaders are actively engaging with the community through social media. however, ministry of communication and information observations indicate that the majority of government sites and autonomous local governments are at the first level (preparation), with only a small percentage achieving level two (maturation). neither level three (stabilization) nor level four (utilization) have been reached in the interim. the ministry of communication and information's in-depth observations suggest that the program has not steered e-government in the right direction. several disadvantages stand out: a. the services provided through the government website are not supported by an effective management system and work processes, as regulations, procedures, and limited human resources have severely limited computerized penetration into the management system and government work processes; 3 achmad djunaedi, beberapa pemikiran penerapan e-government dalam pemerintah daerah di indonesia, semin. nas. e-government work. linux 30 oktober 2002 (2002). 4 zainal a hasibuan, langkah-langkah strategis dan taktis pengembangan egovernment untuk pemda, 3 j. sist. inf. mti ui vol 3 1–5 (2007). http://journal.unnes.ac.id/sju/index.php/jils 284 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils b. no strategy has been developed yet, and an insufficient budget has been allocated for; c. the development of a safe and dependable system for incorporating management systems and work processes within government agencies into integrated public services has received less attention; d. individual approaches are inadequate to close the community's access gap to the internet network, thereby restricting the reach of existing public services. according to the report, the aforementioned conditions indicate that indonesia is falling behind the rest of the world in terms of e-government growth. this study recommends that additional research be performed to determine the factors underlying indonesia's sluggish adoption of e-government5. the aim of this article is to discuss the challenges that indonesian local governments face when implementing egovernment. the first segment begins with an introduction outlining the current state of e-government in general and indonesia's specific challenges. following that, there will be a discussion of the concept of e-government and its development, followed by a discussion of the e-government architecture. the following section discusses the roadmap for indonesia's e-government architecture, accompanied by a review of the challenges associated with incorporating egovernment in the practice of local governments in indonesia, and concludes with recommendations. the authors gathered primary and secondary data for this investigation. the primary data collecting approach was an interview with semarang city's head of information and technology, while 5 yunita and aprianto, supra note 1. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 285 available online at http://journal.unnes.ac.id/sju/index.php/jils secondary data collecting methods included regulation, document, and journal articles. short-tail e-government numerous e-government ideas have been suggested by experts. they all refer to the same thing, however: a government structure that provides services to the public and business worlds through the use of information technology, with the aim of increasing efficiency, efficacy, transparency, and interaction speed, as well as significantly reducing service costs6. thus, this definition encompasses three major components: the use of information and communication technology (ict) to enhance government efficiency, efficacy, transparency, and accountability, and, most importantly, government services to the public and private sectors 7. according to fang, there is a significant distinction between e-government and egovernance. the initial e-government concept seemed more static than others, with the government concentrating exclusively on uploading services to the website. nonetheless, the second concept's meaning is more inclusive. e-governance requires more than just providing access to government websites and e-mail systems. it is not limited to discussing the delivery of government services through the internet. it is not restricted to having access to government-issued digital documents. the fundamental shift in the relationship between government and community, as well as between communities, is 6 tamara almarabeh & amer abuali, a general framework for e-government: definition maturity challenges, opportunities, and success, 39 eur. j. sci. res. 29–42 (2010); lemuria carter & france bélanger, the utilization of e-government services: citizen trust, innovation and acceptance factors, 15 inf. syst. j. 5–25 (2005); djunaedi, supra note 3. 7 djunaedi, supra note 3; yunita and aprianto, supra note 1. http://journal.unnes.ac.id/sju/index.php/jils 286 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils manifested in e-governance through the concept of needs and obligations 8. the word "e-government" was coined for the first time by former us vice president al gore. he wished that someday there would be a way to connect individuals to various government agencies and public services. according to al gore, this can be accomplished by the use of information technology by reducing the amount of time 9, the level of service, and the speed at which it is provided to the public 10. al gore's definition was then captured by information technology experts in the concept of e-government, which is a government activity carried out through electronic communication for the purpose of providing digital services to the public, community, and business world 11. by and large, egovernment aims to provide people with government services that are reliable, timely, accurate, and cost-effective 12. according to zhiyuang, this will improve the city's government services' results 13. thus, middleton asserts, the use of cutting-edge information technology is crucial to e-success governments or failure 14. tamara continued by emphasizing that e-government is a continuous and gradual process. each government will approach egovernment differently, beginning with electronic mail (e-mail) and 8 zhiyuang fang, e-goverment in digital era : concept, practice and development, 10 int. j. comput. internet manag. 1–22 (2002). 9 paul t. jaeger & kim m. thompson, e-government around the world: lessons, challenges, and future directions, 20 gov. inf. q. 389–394 (2003). 10 almarabeh and abuali, supra note 6. 11 id. 12 fengyi lin, seedy s. fofanah & deron liang, assessing citizen adoption of egovernment initiatives in gambia: a validation of the technology acceptance model in information systems success, 28 gov. inf. q. 271–279 (2011). 13 fang, supra note 8. 14 michael middleton, approaches to evaluation of websites for public sector services, proce 279–284 (2007). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 287 available online at http://journal.unnes.ac.id/sju/index.php/jils advancing to the highest stages, which include digital democracy and joint government. today, three developed countries – the united states, canada, and finland – lead the world in e-government 15. e-governance will allow direct interaction between citizens and government, engagement in policymaking, and collaboration between communities in order to participate in the democratic process. thus, e-governance covers a much broader range of activities than e-government. in this regard, the government's choice of an online-based government concept has an impact on the technology adoption model and e-government system it develops 16. indonesia's e-government architecture eddy satriya stressed the importance of revitalizing the new egovernment [concept] by taking into account the government's and society's readiness, in compliance with fundamental principles, and gradually 17. the rapid advancements in information technology, global problems, and societal conditions all contribute to the critical nature of e-government revitalization. according to this, there are three stages in the development of e-government services in indonesia 18: 15 almarabeh and abuali, supra note 6. 16 fengyi lin et al., a general framework for e-government: definition maturity challenges, opportunities, and success, 28 gov. inf. q. 271–279 (2010). 17 eddy satriya, pentingnya revitalisasi e-government di indonesia, in prosiding konferensi nasional teknologi informasi & komunikasi untuk indonesia 3-4 mei 2006, aula barat & timur institut teknologi bandung 38 38–43 (2006). 18 djunaedi, supra note 3. http://journal.unnes.ac.id/sju/index.php/jils 288 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils a. phase i: information dissemination for the benefit of individuals and companies (via the web/internet) often enables two-way communication. b. phase ii: an intranet program allows data to be collected (online), processed, and disseminated in a more efficient manner (to increase efficiency); although certain service delivery processes remain offline, the public may monitor performance online. c. stage iii: with the use of an extranet, people can complete application forms electronically (via the internet). zainal arifin hasibuan proposed that the e-government stages be implemented in three phases: in the short term, by compiling technical guidance and a general e-government structure, including the e-government competency standard book, and disseminating them; in the medium term, by implementing the e-government competency standard book; and in the long term, by implementing the e-government competency standard book. additionally, the guidebook and technical guidelines outline a method for running egovernment in the medium term 19. meanwhile, it will continue to operate the e-government services outlined in the manual in the long run. in line with this ideas, parmita saha et al. emphasized the importance of a solid theoretical foundation for evaluating costeffectiveness, facilities, and government performance, as well as public satisfaction with government services provided through the egovernment system 20. 19 hasibuan, supra note 4. 20 parmita saha, atanu nath & esmail salehi-sangari, success of government e-service delivery: does satisfaction matter?, 6228 lncs lect. notes comput. sci. (including subser. lect. notes artif. intell. lect. notes bioinformatics) 204–215 (2010). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 289 available online at http://journal.unnes.ac.id/sju/index.php/jils meanwhile, weiling ke dan wei concluded from his research on the implementation of e-government in singapore that three critical factors influence the progress of e-government, namely strong leadership with a clear vision and a well-defined mission. according to ke and wei, this factor is important for encouraging government stakeholders to collaborate in order to achieve the government's vision and change the mindset of government agencies toward egovernment advancement. in addition, the second explanation for singapore's e-government progress is that the government must close the technological infrastructure gap [between stakeholders and society]. as a result, the government provides specialized computer education to stakeholders and the general public in order to foster technological literacy and an understanding of e-government. the strong political will to provide services [online] to the populace through an orderly coordination mechanism is the final factor driving the singapore government's progress toward e-government implementation 21. indonesia's roadmap to egovernment in 2001, indonesia started implementing e-government with the publication of presidential instruction no. 6 of 2001 on the creation and use of telematics in indonesia. the government is investing heavily in telecommunications, media, and information technology (telematics). why is the government concentrating its efforts on these three points?. the government anticipates that these three measures would have an impact on society's attitude and perspective when it 21 weiling ke & kwok kee wei, successful e-government in singapore, 47 commun. acm 95–99 (2004). http://journal.unnes.ac.id/sju/index.php/jils 290 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils comes to various activities based on the ease and speed at which information can be shared. according to the government, this situation represents an opportunity to use this capital to unite the country and inspire the populace in order to achieve long-term national growth success. the legislation strategy of president abdurrahman wahid for the advancement of telematics laid the foundation for e-government. the strategy emphasized two critical points: information technology would eventually alter society's culture by facilitating faster and easier social interactions. additionally, the presence of information technology must be used for two purposes: to strengthen national unity and integrity, and to inspire the broader society. after president abdurrahman wahid resigned and was succeeded by megawati soekarno putri two years later, the telematics policy was continued. president megawati demonstrated her commitment to the advancement of telematics in indonesia by forming the indonesian telematics coordination team through presidential decree no. 9 of 2003. this presidential decree (keppres) issued in january 2003 established a more precise purpose for its use, namely to promote various government, industry, and social activities, as well as to boost the nation's competitiveness. to accomplish these goals, it is critical to create a common perception and direction for the development of telematics in indonesia. additionally, the government, industry, and society must work collaboratively to develop and incorporate telematics. without a question, the president was named as the team's chief sponsor, alongside the chief executive of the state minister for communication and information and six ministers and state secretaries. the indonesian telematics coordination team's primary tasks are as follows: http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 291 available online at http://journal.unnes.ac.id/sju/index.php/jils 1. provide direction and insight into the development of national telecommunications policies; 2. advancing human resource growth, manufacturing, and the use of telematics in indonesia; 3. stimulating economic growth by the and promoting public participation in the development and deployment of telematics technology; 4. strengthen collaboration among all central and regional government agencies, state and regional government-owned enterprises, and the private sector. professional associations and the telematics sector, as well as the broader community interested in telematics use and advancement to smooth out the main agenda for telematics development, the coordination team enlisted community participation through the working group charged with developing indonesian telematics technical specifications. the chair of the working group is empowered to hire members from a range of related backgrounds, including experts [telematics], analysts [telematics], the business community, educational organizations, universities, the telematics culture, and society [elements]. the indonesian telematics coordination team's concrete actions became evident five months after presidential decree no. 9 of 2003, which established the national policy and strategy for egovernment development as outlined in presidential instruction no. 3 of 2003, which was enacted in june 2003. this presidential instruction demonstrates how information technology can be used to increase government efficiency, effectiveness, transparency, and accountability. advances in information technology prompted the establishment of e-government in 2003. at the time, the government separated these changes into two categories: public services and http://journal.unnes.ac.id/sju/index.php/jils 292 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils distribution of goods and services to improve people's lives by making them more convenient, cheaper, faster, more secure, transparent, and accountable. the following provides a more detailed explanation of the two demands for group reform made against the government through information technology: a. the public expects public services to be responsive to the needs of a wider community in all rural areas, to be dependable and trustworthy, and to be interactively available. b. since the public requires that their expectations be fulfilled, the government must foster public participation and discussion in the formulation of state policies. the requirements for service enhancement emphasize two critical points: basic and digital facilities. the other possibility is that there is a social demand for a room where public desires can be channeled directly to the government, bypassing traditional bureaucracy. the ministry of communication and telecommunications reaffirmed its commitment to e-government implementation in compliance with presidential instruction no. 3 of 2003. as the face of government, they are compiling a blueprint for egovernment application systems for regional government agencies, indonesia's leading area of e-government. the blueprint is focused on adaptability and standardization principles. these two principles decouple the blueprint from the local government's internal framework, making it more resistant to policy changes while still encouraging local councils to adapt and translate it. in other words, this blueprint enables local governments to develop their own e-government systems as long as they adhere to the guidelines established by the central government.22 22 departemen komunikasi dan informatika ri, cetak biru (blueptint) sistem aplikasi e-government bagi lembaga pemerintah daerah (2016). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 293 available online at http://journal.unnes.ac.id/sju/index.php/jils the blueprint specifies six interconnected phases for the egovernment architectural framework, namely: a. internet use b. use of telematics infrastructure c. use of application systems d. metadata standardization e. electronic data transactions and exchange, and f. electronic documentation system according to the e-government blueprint, at least four government functions must be automated, including the following: a. society service b. staffing c. regional finance, and d. asset management. the concept-based categorization of government functions framework. government functions framework. it is a framework that specifies how government functions are organized around common functional blocks. six general basic function blocks comprise this structure: service, administration and management, legislation, manufacturing, finance, and employment. population, taxation and punishment, registration and licensing, business and investment, public complaints, and dissemination of public and governance information are the basic service function blocks. additionally, the primary administrative and management task blocks include electronic mail, electronic document systems, decision support systems, collaboration and cooperation, and management of government reporting 23. according to the blueprint, e-government has the potential to transform government functions in five ways24: a. change in work culture 23 yunita and aprianto, supra note 1. 24 departemen komunikasi dan informatika ri, supra note 22. http://journal.unnes.ac.id/sju/index.php/jils 294 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils b. change in business process c. standard operational procedure (sop) and political policy d. rules and regulations e. leadership according to presidential instruction no. 3 of 2003, there are four phases in the implementation of e-government: the first (preparation), the second (maturation), the third (consolidation), and the fourth (expansion or utilization). according to the blueprint, each stage's implementation should provide concrete and achievable targets that both stakeholders will recognize and obey. the higher a local government's level of e-government, the more complex management system support, work processes, and information transfers between agencies are required. as a result, according to the blueprint, [every] attempt to lift the level without sufficient support is doomed to fail 25. the blueprint reorganized e-government application solutions within the previous government function block, in the context of etechnical government's implementation. the matrix approach to grouping service functions according to their orientation and the nature of the application system's meaning. using this definition as a starting point, the blueprint divides the application process into three (three) categories: 1. the application framework community whose primary objective is to offer direct services to its customers (front office applications). 2. the application framework community whose primary objective is to administer government and perform official and administrative functions (back-office applications). 25 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 295 available online at http://journal.unnes.ac.id/sju/index.php/jils 3. for a primary and broad category of application systems, a more specific application system is needed. the bulk of essential application services are classified as back-office. each of these structures is further classified into three subgroups according to the user orientation it represents: 1. the category of e-government application frameworks whose functionality focus is oriented towards the needs and desires of the society (g2c: government to citizen) 2. a collection of e-government application frameworks designed to meet the business community's needs and desires (g2b: government to business) 3. a collection of electronic government application systems that serve the internal requirements of government agencies or the requirements of other local governments (g2g: government to government) local government egovernment challenges the 2018 law on e-government allows local governments to move from traditional to electronic government. this is meant to streamline the service delivery process while also increasing public participation. additionally, it is hoped that e-government would eliminate corruption within the government bureaucracy. however, implementation of e-government by local governments has been slow so far. for instance, using semarang city as the capital of central java province as a case study reveals the city's latent e-government adoption problems. according to arif budiman, head of semarang city egovernment services, the implementation of e-government in local http://journal.unnes.ac.id/sju/index.php/jils 296 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils government, especially in semarang city government, is classified according to a stage known as the e-government maturity model. the semarang city government initially developed a leading website as a means of maintaining an online presence that provides valuable information to the public and stakeholders in need. the following stage is interaction, during which the semarang city government's website and associated applications solicit feedback from other stakeholders and facilitate data and information sharing. transparency of information, as required by the public information disclosure law, and involvement or collaboration of stakeholders in brainstorming services and development in semarang city through applications on the newly created website. the following stage is a transaction, during which the exchange of data, financial transactions, and taxes is facilitated by essential public interoperability technologies such as web services, and data sharing that enable integration with multiple applications. simultaneously, for instance, through the integration of online attendance programs with employee health systems and other applications. the subsequent stage is a hybrid of the first and final stages, enabling collaboration across all lines and stakeholders, and emphasizing the importance of open data and shared data in delivering a more optimal service to the community. the semarang city government has thus far only reached the collaboration stage, which encompasses all lines ranging from online presence or informative stage to transactional stage. the slow pace of e-government development in semarang city can be attributed to two factors: each regional apparatus organization's (opd) sectoral ego and the discontinuity of commitment to e-government advancement due to leadership changes. according to david gichoya, these difficulties are present in a large number of e-government projects, including those in kenya. david discussed some of the obstacles to http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 297 available online at http://journal.unnes.ac.id/sju/index.php/jils implementing e-government in greater detail, including infrastructure, funding, inadequate data systems and lack of accessibility, technical staff, leadership styles, culture, bureaucracy, and attitude 26. the acute challenge facing semarang city's regional government in advancing e-government is sectoral ego, which some experts say is a "latent" disease in regional government 27. the sectoral ego is marked by a strong sense of autonomy in the execution of development programs and a reluctance to collaborate with other departments 28. this sectoral ego is impeding development by refusing to conform or be collectively supervised 29. it will foster an unhealthy competitive spirit amongst sectors inside a government bureaucratic system rife with sectoral egos. in comparison to other industries, one sector seems insignificant. as a result, the government has incurred considerable waste in financing the regional government's information technology system, which, while achieving 65 percent utilization through spbe, is not integrated 30. additionally, as a result of this situation, major disconnects in vision and mission existed between agencies. as a result, hadinagoro 26 david gichoya, successful implementation of ict projects in government, 3 proc. eur. conf. e-government, eceg 171–182 (2005). 27 erwin rasyid et al., jaringan komunikasi dalam pengelolaan perencanaan program penanggulangan kemiskinan di provinsi sulawesi barat, 7 j. kaji. komun. 133 (2019). 28 yohanes museng ola buluamang & leope pinnega handika, komunikasi pemerintahan antar perangkat daerah di provinsi nusa tenggara timur (ntt), 21 j. penelit. komun. 57–72 (2018). 29 richardus eko indrajit, evolusi strategis integrasi sistem informasi ragam institusi: kiat memecahkan permasalahan politis dalam kerangka manajemen perubahan, in prosiding konferensi nasional teknologi informasi & komunikasi untuk indonesia 98–101 (2006). 30 wisber wiryanto & muhammad ma’ruf afif, akuntabilitas layanan publik mel alui penerapan sistem pemerintahan berbasis elektronik 63–77 (2003). http://journal.unnes.ac.id/sju/index.php/jils 298 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils proposed a new method of managing the government known as whole-of-government management31: "a policy that unifies the actions of a government's departments and agencies in pursuit of a shared goal. another term for it is the interagency method. the phrases "unity of effort" and "unity of goal" are often used interchangeably to refer to collaboration between all participants, both government and non-government." all organizations embrace the following values in this strategy: collaboration, togetherness, unity, common goals, and the participation of all participants at all levels of government. technically, the key to successful e-government implementation is a single policy for everyone based on these principles. as a development of the new public management (npm) strategy of establishing sectoral egos, whole of government (wog) emphasizes the importance of unifying all facets of government 32. this situation is empirically observed on a national scale, as shown by the results of the ministry of administrative reform and bureaucratic reform's (kemenpan) 2019 evaluation of the implementation of the electronic based government system (spbe, here and after): 31 suharyono s. hadinagoro, reduksi ego sektoral dan perkuat sinergi demi produktivitas nasional, perpustakaan nasional republik indonesia (2020). 32 a. evangelidis et al., risk assessment & success factors for e-government in a uk establishment, 2456 lect. notes comput. sci. (including subser. lect. notes artif. intell. lect. notes bioinformatics) 395–402 (2002); jörg becker et al., e-government success factors 503–504 (2004); ke and wei, supra note 21; gichoya, supra note 26. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 299 available online at http://journal.unnes.ac.id/sju/index.php/jils table 1. kemenpan evaluation of e-government 2019 province scale very good good good enough not so good province of central java riau province north sumatra province west sumatra province west java province diy province east java province east kalimantan province south kalimantan province south sulawesi province bengkulu province lampung province banten province west kalimantan province east nusa tenggara province maluku province jambi province north kalimantan province west sulawesi province source: kemenpan, 2019 along with the few provinces that had their respective scores, the provinces that were not reported "expressed reluctance" to announce their spbe achievement ratings. it is a cause for concern that some regions of the province are opposed to releasing the spbe evaluation results. transparency is the primary condition for electronic governance. on the other hand, this fact raises questions about the central government's stance, which is unable to "coerce" regions into transparently publishing their spbe data. according to arief budiman, e-government implementation in local government is http://journal.unnes.ac.id/sju/index.php/jils 300 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils self-sustaining. the central government's strategic initiative phases, on the other hand, show that the government is not self-sufficient— regions in establishing their e-government systems. local government spbe architecture development starts in 2020-2021, immediately following the completion of the central government spbe architecture in 2018-2020. the regional government spbe coordination unit, on the other hand, started in 2018-2019 and will continue to improve and review policies annually until 2025. meanwhile, spbe human resources is strengthening public servants' capacity to handle the spbe. among the policy advantages introduced was the application of human resource professional competency standards to spbe requirements. following the functional status of spbe, an appropriate remuneration plan is introduced, as is advanced planning for spbe human resources. according to ndou, the human resource component of egovernment is a hot topic in developing countries. human resources for e-government are required to combine commercial and management processes with technology systems.33 additionally, technical capability is necessary for installing, managing, designing, and implementing information, communication, and technology infrastructure. as a result, human resources in this field must constantly update their knowledge through seminars, conferences, and training. the government's strategic initiatives in the spbe human resources sector align with the solutions suggested in table 2.34 the imbalance between decision-makers and e-government is being addressed at the monthly meeting in order to level the playing 33 valentina (dardha) ndou, e-government for developing countries: opportunities and challenges, 18 ejisdc 1–24 (2004). 34 almarabeh and abuali, supra note 6. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 301 available online at http://journal.unnes.ac.id/sju/index.php/jils field. additionally, this strategic plan includes remuneration or special benefits. 35 the problem with spbe's implementation in indonesia is a matter of regulatory impediments. according to arief budiman, semarang city believes it retains control in developing spbe. the primary impediment is the conflict between sectoral egos and policy discontinuity. the problem map proposed by almarabeh and abu ali is deserving of consideration. due to the high probability that the usage of technology, networking, and telecommunications in spbe would conflict with the existing legal system, this conflict could be the most important impediment to e-government implementation. as a result, almarabeh and abu ali suggested a comprehensive analysis of current laws, as well as the creation of new ones that are simpler and encourage e-government activity, such as granting legal status to the publication of government information. the government has invited law 14 of 2018 on freedom of information in this regard. this law establishes a democratic right to access information, empowering the public to influence government administration 36. table 2 e-government problems and solutions problems solutions human resources human resources must be structured and managed with egovernment goals in mind. a well-trained and motivated workforce is critical to e-government success. • articulate a timeline for implementation in a stepby-step manner so the reforms will not seem overwhelming to the bureaucracy. • hold regular meetings between e-government policy leaders and the affected workforce, so 35 lin, fofanah, and liang, supra note 12. 36 almarabeh and abuali, supra note 6. http://journal.unnes.ac.id/sju/index.php/jils 302 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils employees are active participants. • create incentives by rewarding individuals and agencies that apply the reforms rapidly law and policy the application of information technology and communication (ict) to government may encounter legal or policy barriers. legislatures must ensure that laws are updated to recognize electronic documents and transactions. policymakers implementing egovernment must consider the impact of law and public policy. • consult with stakeholders to assess how existing laws may impede the desired results. • give legal status to the online publication of government information. • clarify laws and regulations to allow electronic filings with government agencies. • reform processes by simplifying regulations and procedures. according to the report by the ministry of state apparatus empowerment and administrative reform, it also highlights the issue of spbe resource disparities between regions in indonesia during the 2019 period. the word "capital gap" applies to all aspects of implementing e-government, including human resources, the internet, regulation, and finance. these four factors work in concert to advance e-government. the aim of these four tools' estuary is to provide the city with satisfactory services. four factors will affect public satisfaction with e-government services: quality (time and cost), anonymity, responsiveness, and website services 37. 37 saha, nath, and salehi-sangari, supra note 20. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 303 available online at http://journal.unnes.ac.id/sju/index.php/jils conclusion the second stage of the roadmap for the establishment of egovernment in indonesia has been completed, namely the integration of the government system as a database in the e-government implementation. data sharing is critical for the advancement of egovernment because it enables true speed and ease of operation for the public. the local government’s primary impediment at the moment is the traditional bureaucratic mentality, which is still deeply embedded in its sectoral ego. each agency competes to demonstrate its effectiveness by disparaging the performance of competitors. individualism and a lack of coordination have hindered the pace of local government adoption of e-government. another impediment is the e-government leadership's inconsistency. when positions are rotated, what was expected by previous officials is still overlooked by new officials with fresh perspectives. this is undoubtedly a distinct obstacle for regional technologists implementing e-government architecture. meanwhile, the impact of e-government on local government performance appears to be generally positive, especially in four areas: human resources, time, budget, and costs. from the viewpoint of local government, these four industries are clear in terms of efficiency and efficacy, both in terms of employment, infrastructure, and assurance. meanwhile, residents are generally satisfied with the pace and ease with which local governments respond to community needs. this situation becomes a distinct credit for the government in order to re-establish public confidence in government services that were previously regarded negatively due to slow response times, lengthy processes, and high costs. http://journal.unnes.ac.id/sju/index.php/jils 304 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils a regulatory framework that explicitly supports the requirements of e-government technology is required—efforts to reform the current bureaucratic order around a single vision, namely one of shared development. additionally, it is critical to continually enhance human resource capacity through relevant training items in order to support e-government. meanwhile, comprehensive and ongoing socialization is needed to increase government-population interaction. references almarabeh, t., & abuali, a. 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(2002). beberapa pemikiran penerapan e-government dalam pemerintah daerah di indonesia. seminar nasional egovernment & workshop linux, 30 oktober 2002. http://mpkd.ugm.ac.id/weblama/homepageadj/support/publika si/ti-egov/egovtpemdaindo.pdf http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 305 available online at http://journal.unnes.ac.id/sju/index.php/jils evangelidis, a., akomode, j., taleb-bendiab, a., & taylor, m. (2002). risk assessment & success factors for e-government in a uk establishment. lecture notes in computer science (including subseries lecture notes in artificial intelligence and lecture notes in bioinformatics), 2456, 395–402. https://doi.org/10.1007/3-54046138-8_64 fang, z. (2002). e-goverment in digital era : concept, practice and development. international journal of the computer, the internet and management, 10(2), 1–22. gichoya, d. (2005). successful implementation of ict projects in government. proceedings of the european conference on egovernment, eceg, 3(4), 171–182. hadinagoro, s. s. (2020). reduksi ego sektoral dan perkuat sinergi demi produktivitas nasional. perpustakaan nasional republik indonesia. hardjaloka, l. (2014). studi penerapan e-government di indonesia dan negara lainnya sebagai solusi pemberantasan korupsi di sektor publik implementation study on e-government in indonesia and other countries as a solution in eradicating corruption in public sector). jurnal rechtsvinding, 3(3), 435–452. https://rechtsvinding.bphn.go.id/ejournal/index.php/jrv/article/ viewfile/35/37 hasibuan, z. a. (2007). langkah-langkah strategis dan taktis pengembangan e-government untuk pemda. jurnal sistem informasi mti ui vol 3, 3(1), 1–5. indrajit, r. e. (2006). evolusi strategis integrasi sistem informasi ragam institusi: kiat memecahkan permasalahan politis dalam kerangka manajemen perubahan. prosiding konferensi nasional teknologi informasi & komunikasi untuk indonesia, 98–101. jaeger, p. t., & thompson, k. m. (2003). e-government around the world: lessons, challenges, and future directions. government information quarterly, 20(4), 389–394. https://doi.org/10.1016/j.giq.2003.08.001 ke, w., & wei, k. k. (2004). successful e-government in singapore. communications of the acm, 47(6), 95–99. http://journal.unnes.ac.id/sju/index.php/jils 306 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.1145/990680.990687 lin, f., fofanah, s. s., & liang, d. (2011). assessing citizen adoption of e-government initiatives in gambia: a validation of the technology acceptance model in information systems success. government information quarterly, 28(2), 271–279. https://doi.org/10.1016/j.giq.2010.09.004 lin, f., fofanah, s. s., liang, d., almarabeh, t., & abuali, a. (2010). a general framework for e-government: definition maturity challenges, opportunities, and success. government information quarterly, 28(2), 271–279. https://doi.org/10.1016/j.giq.2010.09.004 middleton, m. (2007). approaches to evaluation of websites for public sector services. proce, 279–284. ndou, v. (dardha). (2004). e-government for developing countries: opportunities and challenges. ejisdc, 18(1), 1–24. rasyid, e., partini, p., haryadi, f. t., & zulfikar, a. (2019). jaringan komunikasi dalam pengelolaan perencanaan program penanggulangan kemiskinan di provinsi sulawesi barat. jurnal kajian komunikasi, 7(2), 133. https://doi.org/10.24198/jkk.v7i2.19574 saha, p., nath, a., & salehi-sangari, e. (2010). success of government e-service delivery: does satisfaction matter? lecture notes in computer science (including subseries lecture notes in artificial intelligence and lecture notes in bioinformatics), 6228 lncs, 204– 215. https://doi.org/10.1007/978-3-642-14799-9_18 satriya, e. (2006). pentingnya revitalisasi e-government di indonesia. prosiding konferensi nasional teknologi informasi & komunikasi untuk indonesia 3-4 mei 2006, aula barat & timur institut teknologi bandung 38, 38–43. wiryanto, w., & afif, m. m. (2003). akuntabilitas layanan publik mel alui penerapan sistem pemerintahan berbasis elektronik. 63–77. yunita, n. p., & aprianto, r. d. (2018). kondisi terkini perkembangan pelaksanaan e-government di indonesia : analisis website. seminar nasional teknologi informasi dan komunikasi, 2018(sentika), 329–336. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 167 available online at http://journal.unnes.ac.id/sju/index.php/jils research article law and policy in addressing marine plastic litter: indonesia response and recent development maruf 1 1 south china sea institute, xiamen university, xiamen, china  marufafdhal@qq.com submitted: 2 october, 2019 revised: november 1, 2019 accepted: november 5, 2019 abstract marine plastic litter is one of the major problems that undermine the indonesian government’s vision for making the sea as the future for the indonesian nation. marine areas of indonesia are endangered by the massive plastic pollution, which is causing serious marine environmental problem. indonesia is referred to as the biggest source of plastic waste in southeast asia and second biggest in the world. indonesia government through presidential decree no. 7/2017 has established national plan of action (npoa) on marine plastic debris management to strengthen the indonesian commitment in reducing marine plastic litter. furthermore, the indonesian government also enacted presidential regulation no. 83/2018 on handling marine litter. thus, the present study argues that it is of paramount necessity to assess the impact of the legal framework regulating marine plastic litter in indonesia in order to identify the lacuna in the existing legislative and policy framework for dealing with marine environmental pollution caused by marine plastic litter. keywords: marine environment protection; marine plastic litter; indonesian legal framework; npoa nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 4 issue 2, november 2019 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) mailto:marufafdhal@qq.com 168 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 167 table of contents ………………………………...………….….. 168 introduction ………………………………………………………. 168 indonesia’s law on the protection of marine environment …………………………………………………….….. 171 1. law no.32 of 2014 on the sea ………………………………………. 171 2. government regulation no.19 of 1999 on control of marine contamination/ damage ……………………………………………. 171 3. law no.32 of 2009 on environmental protection and management 4. law no.18 of 2008 on waste management ………………………... 172 5. government regulation no 21 of 2010 on marine environment protection ……………………………………………………………... 174 indonesia response and recent development of law and policy ……………………………………………………. 175 1. indonesia’s national plan of action on marine plastic debris (npoa) ……………………………………………………………….. 175 2. indonesia’s implementation of its npoa ………………………….. 178 3. challenges and barriers ……………………………………………… 182 conclusion ……………………………………………………..…… 184 references …………………………………………………………… 184 copyright © 2019 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. how to cite: maruf, m. (2019). indonesia response and recent development of law and policy in addressing marine plastic litter. jils (journal of indonesian legal studies), 4(2), 167-188. doi: https://doi.org/10.15294/jils.v4i2.34757. introduction the importance of the marine sector to the indonesia is very significant. indonesia is an archipelagic country that has the largest sea area and number of islands in the world. having huge region, indonesia has the https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35405 jils (journal of indonesian legal studies) volume 4(2) 2019 169 available online at http://journal.unnes.ac.id/sju/index.php/jils economic potential of both living and non-living marine resources. indeed, nearly 65% of the indonesia populations live in coastal areas. therefore, the marine sector should be maintained and developed for the country’s prosperity (nurkholis, 2016). with such great potential, president joko widodo “jokowi” declared a new vision in the maritime sector that the sea is the future of the indonesia and making indonesia the global maritime fulcrum (gmf). in a first presidential speech on 20 october-2014, president jokowi asserted that it is time for indonesia to return to its origin, from the sea and making the sea as the power of the nation. maritime is expected to be the leading sector that supports the national economy. this vision carried by president jokowi is not without foundation. the main foundation is that indonesia is the largest archipelagic country and has the largest number of islands with the second longest coastline in the world. indonesia is in a cross position between the asian and australian continents and between the indian and pacific oceans. in addition, the geo-economic and geo-political center of gravity of the world is shifting from west to eastern asia. this momentum will be very good in supporting the ideals of indonesia as the gmf (bps, 2017). however, there are certain obstacles such as overfishing, marine pollution, and illegal, unreported and unregulated fishing activities (iuuf) are the threats as well as the challenges to realize the government’s vision on the maritime and fisheries sector. marine plastic litter is also one of the issues and problems that undermine the indonesian government’s vision for making sea as the future of the indonesia. indonesian maritime areas have been subjected to this massive plastic pollution, which is causing serious environmental problem. in 2015, indonesia had been referred to as the biggest source of plastic waste in southeast asia and second biggest in the world, with 3.2 million tons of plastic waste polluted in indonesian waters (jambeck, 2015). addressing marine plastic litter in indonesia has become a big challenge. thus measures to reduce and curtail inputs of litter to the sea are urgently required to be taken. there have been many research studies on the nature and impacts of marine plastic litter, both from macro or micro plastics that threaten the marine life such as entanglement and ingestion. this problem of marine plastic litter also happened in indonesian waters. currently, a number of instruments have been developed at international, regional and national levels to combating marine plastic litter that can be used as a guide by national or regional to address marine plastic litter problems, including indonesia. in the context of developing countries like indonesia, addressing marine plastic litter becomes the biggest challenge that is quite difficult to overcome and also becomes a legal and regulatory challenge for many 170 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils countries to provide procedures and standards to prevent, mitigate, and manage marine plastic litter. studies have shown that the threat to the damage of marine ecosystem from marine plastic litter, both macro and microplastic has a detrimental effect on the marine environment. marine plastic litter is increasingly recognized as one of the greatest threats to global oceans, and the living creatures who depend on them. both macro and microplastics have been found from small zooplankton to the largest whales, from worms burying in the seabed to seabirds feeding in the upper ocean (kershaw, 2016). in recent study, microplastics particle has also been found in the sea salt, lake salt and rock salt (gündoğdu, 2015). marine plastic research in indonesia is currently developed (purba, 2019). marine micro plastics in indonesia have been found in the seafood such as fishes and shellfish. research studies in indonesian stated that anthropogenic litter, particularly plastic was found in 28% of individual fish and 55% of all species in makassar, indonesia (rochman, 2015). the presence of micro plastic which was found in indonesian fish presents potential risk to the human health. marine plastic litter in indonesia is not only on the sea’s surface and beach, but also has been found in deep sea sediment ranging from 66.8 to 2182 m in southwestern sumatra waters in the eastern indian ocean. southwest sumatra water is of an interest for studying micro plastic due the fact that it is a busy domestic and international shipping route. from 10 sampling location, marine microplastic has been found in 8 sampling location. this research states that 41 particles of microplastics in the forms of the granule (35 particles) and fibers (6 particles) (muhammad reza cordova 2016). microplastics also have been found in coastal sediments of jakarta bay (manlu a.a, 2017) and cilacap coast on the south coast of java (syakti, 2017). the impact of marine plastic litters also extent to the coastal economies with the declines of tourism revenue and increased cost of coastal cleanup (ocean conservancy 2015). although there is no specific research on the economies impact of marine plastic litter in indonesia, but there have been research on it. the asia-pacific region for instant, reported losing us $ 1.265 billion per year due to damage fishing, shipping, and marine tourism industries (apec, 2009). jils (journal of indonesian legal studies) volume 4(2) 2019 171 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesia’s law on the protection of marine environment marine pollution, particularly from marine plastic litter is one of the major problems in indonesia. indonesia has already enacted legal framework to address marine pollution problem. the legal framework governing marine environment can be found in a number of laws on general marine environment protection law including law no. 32 of 2014 on the sea, law no. 32 of 2009 on the protection and management of environment, government regulation no. 19 of 1999 on control of marine pollution/ destruction, government regulation no. 21 of 2010 on marine environment protection and law no.18 of 2008 regarding waste management. 1. law no.32 of 2014 on the sea law no. 32 of 2014 is the umbrella legislation for marine-related undertakings. article 1 defined marine environment protection as a systematic and integrated effort undertaken to conserve marine resources and prevent the occurrence of pollution and/or environmental damage in the sea that includes marine conservation, sea pollution control, marine disaster management, pollution prevention and mitigation, as well as damage and disasters. the sources of marine pollution in this law includes pollution from land, pollution from activities in the sea, and pollution from activities of the air which occur in the territorial waters, from outside the territorial waters or the territorial waters outside the territorial jurisdiction of indonesia. article 50 of the 2014 indonesia law of the sea stated that the government undertakes efforts to protect marine environment through; marine conservation, marine pollution control, marine disaster management, prevention and control of pollution, destruction and disasters. in addressing marine pollution problem, government should also work together, whether bilateral, regional, multilateral ways for implementing the prevention, reduction and control of marine pollution. 2. government regulation no.19 of 1999 on control of marine contamination/ damage increasing development activities on land and in the sea as well as the utilization of the sea and its natural resources may result in the contamination of and/ damage to marine environment. therefore, 172 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesian government in 1999 enacted government regulation (gr) no. 19 of 1999 on control of marine contamination/ damage. marine contamination shall be the entry or inclusion of living creatures, substances, energy and/or other components in the marine environment by human activities so that its quality deteriorates up to a certain level which shall make the marine environment incompatible to the quality standard and/or its function. the quality standard of sea water shall be the measurement of the limit or content of living creatures, substances, energy and/ or other components which are or must be present and/or contaminating elements whose presence is tolerated in the sea water (article 1 of gr no. 19/1999). this law stated that waste shall be the residue of an undertaking and/ or activity. solid waste shall be the residue or by product of an undertaking and/or a solid form, including garbage. article 2 provides that the protection of marine quality shall encompass efforts or activities of controlling marine contamination and/or damage aimed at preventing or lessening the deterioration of marine quality and/or the damage of marine resources. prevention of marine damage is carried out through prohibiting acts that could cause sea damage and require business activities to prevent and mitigate. marine contamination control/ damage shall be carried out by requiring business activities to restore sea quality, requiring business activities to bear the cost of pollution and compensation payments. as for the instrument that serves to control seawater pollution is through sea water quality standards, sea damage criteria, dumping permits, and also monitoring (rahmadi 2015). the protection of seawater quality is carried out through research on seawater quality data, determination of sea quality status with reference to maritime environment damage standard criteria, and criteria of sea degradation (article 3). the prevention of marine pollution shall be carried out through prohibiting actions which may cause marine pollution, require business to conduct marine pollution, oblige business activities to comply with seawater quality criteria, and also require business activities to process liquid waste and solid waste. 3. law no.32 of 2009 on environmental protection and management law no. 32 of 2009 on environmental protection and management is a legal umbrella of environmental law regulation in indonesia including marine environment protection. this law contains general principles, national standards/criteria, and procedures regarding the protection and management of the environment in indonesia. according to article 4, the protection and management of the environment includes planning, jils (journal of indonesian legal studies) volume 4(2) 2019 173 available online at http://journal.unnes.ac.id/sju/index.php/jils utilization, control, supervision, and law enforcement. environmental pollution control is implemented by the government, local government, and the person in charge of business in accordance with their respective authorities, roles and responsibilities. in this control, the instruments of pollution prevention and environmental degradation include environmental strategic studies, environmental impact assessments (eias), and the application of standard criteria for environmental damage. land-based waste is the largest source of marine plastic litter (jambek 2015). a large population of indonesia with high growth rates resulted in an increase in the volume of waste from land to the ocean. in addition, people consumption patterns contribute to create increasingly diverse types of garbage, among other things, dangerous packaging waste and difficult to disentangle by natural processes. therefore, managing waste disposal became strategic measure in addressing marine plastic litter. indonesian government has enacted law no. 18 of 2008 on waste management. 4. law no.18 of 2008 on waste management indonesia has also enacted law no.18 of 2008 regarding waste management which aims to prevent the marine pollution from land-based pollution (ramesh ramachandran, 2014). the enactment of this law represents a milestone in indonesian waste management legislation, particularly in relation to landfill operation and management. this law as the legal basis for waste management related activity, including land filling of municipal solid waste management (mswm). land filling is still the predominant method of mswm in indonesia. therefore, passing of this law is very important step for the development, particularly with regard to landfill operation and management (munawar, 2017). this law requires mswm authorities to integrated waste management through 3rs (reduce, reuse recycle) as the first priority, and the next priority is waste handling. this concept is considered as a new paradigm to replace the collect-transport-dispose concept, which is usually adopted in most indonesian cities. the concept of 3rs is the best available measure to reduce wastes, and active involvement on the part of the community and other was generation to reduce waste volumes are the key to the success of any waste management system (damanhuri, 2014). municipal solid waste management in indonesia, particularly in big cities, is one of the most challenging urban problems for city administrators. population growth and ever increasing activities in major cities entails the increase of waste generation and all of the inherent consequences. it was estimated, that of the entire wastes generated in 174 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils 2006, at most only around 60-70 % could be transported to final disposal by the institutions responsible in handling wastes and cleanness, such as city/ district cleanliness divisions. the rest is handled by the community through their self-effort or unsystematically disposed all over the city (damanhuri, 2014). 5. government regulation no 21 of 2010 on marine environment protection the sources of marine pollution including marine plastic also often come from sea based activities. to prevent and mitigate environmental pollution due to ship operation or port activities, it is deemed necessary to regulate the protection of the maritime environment as part of a shipping activity which constitutes a unified system comprising transportation in waters, ports, as well as safety and security in the waters. indonesia therefore enacted government regulation no 21 of 2010 on marine environment protection. the 2010 maritime environment protection regulation focused to address maritime environment protection in general. article 3 stated that every ship’s crew is required to prevent and manage with the occurrence of environmental pollution sourced from the vessel. this vessel environmental pollution may include, oil, toxic liquids, the contents of hazardous materials in the form of packaging, garbage, air, water, and / or dangerous goods and materials for the ship's environment. any ship is prohibited from disposal of waste and other materials from the operation of the vessel to the waters. the protection of the marine environment and its habitat from pollution and human activities were also adopted through various international instruments such as the united nations convention on the law of the sea (unclos). unclos provides the overarching legal framework for marine environmental protection. the london convention on the prevention of marine pollution by dumping of wastes and other matter (london convention) and marpol annex v is a particular international instrument promoted by international maritime organization (imo) specifically addressed marine pollution. indonesia commitment is to actively participate in protecting the marine environment. since 1985, indonesia has ratified unclos 1982 through law no. 17 of 1985 on the legalization of unclos 1985. indonesia has also ratified marpol 73/78 annex i and annex ii in september 1986. furthermore, through regulation of president of the republic indonesia no. 29/2012, indonesia ratified annex iii, annex iv, annex v and annex vi of the international convention for prevention of pollution from ship 1973 as modified by protocol of 1978 (dgst 2017). jils (journal of indonesian legal studies) volume 4(2) 2019 175 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesia response and recent development of law and policy 1. indonesia’s national plan of action on marine plastic debris (npoa) the issue of marine plastic litter has been the concern amongst scientists since 1950s. the first report of marine plastic pollution was appeared in the scientific report in early 1970s, but the issue of marine plastic became widely recognized and a global concern amongst decision-makers and the public in the 1990s, when the five massive gyres in the oceans that consist of plastic debris and microplastic were discovered (finska 2018). the problem of marine plastic pollution became more widely recognized concern by global community since 2015 when jambeck et al. published article on the plastic waste input from land into ocean. this research provides rank of the world’s largest plastic wastes producer into the sea, where indonesia is in the second rank. with the status as the world’s top contributor of marine plastic, indonesian government has committed to reduce wastes through reducereuse-recycleup to 30% until 2025, while targeting reduction of marine plastic litter as much as 70% by 2025. this commitment was delivered by president joko widodo at the leaders retreat g20 summit in hamburg, germany on july 2017. indonesian government in 2017 through coordinating minister for maritime affairs established national plan of action (npoa) on marine plastic debris (2017-2025). this indonesia npoa aimed to manage marine pollution problem from plastic waste and to overcome the waste of marine plastic to reduce up to 70% of plastic waste in 2025. not only to overcome the downstream waste that concerns indonesia, but the government also seeks to encourage cleaning of rivers and beaches. indonesia’s npoa for the first time was presented in a high-level panel at the conference of our ocean, malta on 6 october, 2017. this npoa on marine plastic debris was established through presidential regulation no. 16/2017 on indonesia ocean policy. this presidential decree is a general guideline on maritime policy and implementation measures through programs and activities of ministries or non-ministerial government institutions in the area of maritime sector drawn up to accelerate the implementation of global maritime fulcrum. global maritime fulcrum is indonesia’s vision to be a sovereign, advanced, independent, as well as strong country, and be able to give positive 176 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils contribution to regional and global security and peace in accordance with national interest. the new policy outlines an action plan that comprises programs, strategies and desired outputs seen as crucial in realizing global maritime fulcrum progress (article 1 of president regulation no. 16/2017). based on the presidential decree, this indonesian ocean policy consists of two parts. first is national document of the indonesian ocean policy, which will serve as guideline for ministerial and non-ministerial government institutions and local government in planning, implementing, monitoring and evaluating the development of maritime sector, and also as a reference for society in general and private sectors in participating in the maritime development for the realization of the global maritime fulcrum (marzuki, 2017). the second part of indonesian national ocean policy is action plan of indonesia national ocean policy. plan of action of the indonesian ocean policy is the work plan document to implement various programs and activities in ocean areas in accordance with the national development target. essentially, the action plan translates the seven pillars into policy programs, complete with detailed outline of policy priorities, strategies, aims and objectives. it sets out the ministries and institutions responsible for programs implementation, relevant institutions and stakeholders, the timeframe and funding source (marzuki, 2017). protection of marine environment is one of the pillars of this policy. the objective of marine environment protection policy is to conserve the marine resources and prevent any pollution and harm to the marine environment. the strategic policy of marine environment protection included the prevention, mitigation, and restoration of the impact marine environmental pollution and damages. the issue of the marine plastic litter in indonesia will undermined the vision of the indonesian government vision to make indonesia as the global maritime fulcrum. protection of marine environment from pollution in particular with plastic pollution and waste management in general should become a top priority. president joko widodo at the g20 meeting in july 2017 expressed his commitment to reduce waste and decrease the waste of marine plastic. this target will be achieved through various applications, such as the national solid waste management program (nswm), the national marine agenda and the national plans action for marine plastic debris. indonesia npoa has five main pillars in combating marine plastic litter. these five main pillars including national movement for improving behavioral change, controlling land-based leakage, handling coastal and sea-based leakage, enhancing funding mechanisms, policy reform and law enforcement, and research and development. national movement for improving behavioral change as the first main pillar will be done through jils (journal of indonesian legal studies) volume 4(2) 2019 177 available online at http://journal.unnes.ac.id/sju/index.php/jils stakeholder engagement to lead an efficient and effective involvement in managing marine plastic litter. collaborations amongst ministers for inclusion of non-government stakeholders and cross-sector collaborations nation has been initiated by coordinating ministry for maritime affairs. plastic litter could come from city streets or housings carried into the ocean. therefore, controlling land-based leakage is the second main pillar in indonesia npoa. handling coastal and sea-based leakage as the third main pillar will be done through monitoring and collecting the plastic litter from the ocean employing relevant technologies to guarantee results. improving of environmental awareness through education while also improving waste management facilities in ports, small islands and coastal areas would also be a big part of these management efforts. the forth main pillar is enhancing funding mechanisms, policy reform and law enforcement. funding mechanisms for the npoa is expected mainly coming from regional and national budgets, and supported by other programs such as polluters pay principle and innovations through the use environmentally friendly materials. strategic funding from international organizations and partnering countries can be expected to finance the common efforts in controlling the marine plastic litter. research and development as the fifth main pillar of this npoa play very important role to prevent and solve the problems from various ways including handling marine plastic litter from its source till on the ocean as well as alternative material for plastic and develop and innovation scheme for circular economy. the indonesian government regulates the action plan at the sub national level, national, international and even regional, as well as through the research and development community. at the sub national level or local governments level have function to strengthening capacity of human and financial resources, infrastructure management, and change of behavior. the local government also has action programs in developing an integrated coastal waste management projects. at the national level, indonesian government is trying to promote paradigm change within the society towards solid waste and to respect the coastal areas. the strategies program at the national level including: a. enhancement of stakeholder awareness through education curriculum and campaign; b. conversion of waste into energy; c. implementation of paid plastic bag policy; d. utilization of plastic debris as asphalt mix for “plastic tar road”; e. strengthen regulation on plastic debris management is seaport, shipping, and fishing lines marine plastic problem at the international level addressed through 178 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils bilateral cooperation with other countries and international organization. there are three plans of actions related to the transboundary marine debris over the sea, marine debris from sea transportation and international financial pledge or fund raising. the plan of action for industrial sector is designed to encourage these manufacturers to use recycled plastics as input materials as much as possible, while at the same time producing more biodegradable plastics. industrial sector has role to implement this plan through use of biodegradable plastic, recycled plastic usage, foreign investment and circular economy into the mix, with reduce, reuse, recycle principles, would complete the plastic waste management circle. finally, the last strategic program is academic and community service organization (cso). this plan of action includes research and development, campaign, and waste bank. 2. indonesia’s implementation of its npoa the previous parts have identified the indonesia legal framework on marine environment protection including law no 32 of 2014 on the sea (indonesia law of the sea), law no 32 of 2009 on the protection and management of marine environment, government regulation no. 19 of 1999 on control marine pollution/ destruction, government regulation no. 21 of 2010 on marine environment protection and law no. 18 of 2008 on waste management. these legal frameworks are the legal basis of the protection marine environment in indonesia and there is no specific law in addressing marine plastic litter. therefore, indonesia has established national plan of action on marine plastic litter through presidential decree no. 16/2017 on indonesia ocean policy as described above. in addition to the implementation of indonesia’s npoa, indonesia government on 2018 enacted presidential regulation no. 83/2018 on handling marine litter. this indonesian new regulation aims to follow up indonesian commitment to reduce marine plastic litter. the new regulation provides the strengthening planning, budgeting and integrating organization. this regulation also aims to strengthen and provide guidance to the implementation of indonesia’s npoa on marine plastic litter. article 2 stated that it is necessary to set strategies, programmes, and activities that are synergistically, measurable, and directed to reduce the amount of marine litter, especially plastic waste, in the form of national plan of action for marine plastic litter. in order to implement the action plan, the national coordination team (nct) of marine litter management was formed, hereinafter referred to as the nct, which is directly responsible to the president. the ntc has the duty to coordinate the activities of ministries, non-ministerial jils (journal of indonesian legal studies) volume 4(2) 2019 179 available online at http://journal.unnes.ac.id/sju/index.php/jils government agencies, local governments, communities, and/or businesses in marine debris handling activities; formulating barrier resolution policies and issues arising in the implementation of marine waste handling activities; and coordinate monitoring and evaluation activities on the implementation of the action plan. coordination between stakeholder to lead an effective and efficient involvement is the first main pillar of indonesia’s npoa on marine plastic litter. this involves strengthening regulation and human resources in various sectors and institutions in addressing marine plastic litter. collaborations amongst ministers for inclusion of non-government stakeholders and cross-sector collaborations nation has been initiated by coordinating ministry for maritime affairs. the nct’s membership arrangements as intended consist of: head coordinating minister for maritime affairs daily head minister of environment and forestry members 1. minister of home affairs; 2. minister of foreign affairs; 3. minister of finance; 4. minister of industry; 5. minister of transportation; 6. minister of marine affairs and fisheries; 7. minister of public works and housing; 8. minister of health; 9. minister of education and culture; 10. minister for research, technology and higher education; 11. minister of communication and informatics; 12. minister for national development planning/head of national 13. minister of cooperatives and small and medium enterprises; 14. minister of tourism; 15. cabinet secretary 16. head of the marine security agency. secretary director general of waste management, sewage, and hazardous toxic materials, ministry of environment and forestry. deputy secretary deputy assistant for the utilization of maritime science and technology, coordinating ministry for the field of education. 180 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesian government stated that controlling land-based leakage is the second main pillar of plan of action in addressing marine plastic litter. this is because plastic litter in indonesia could come from city streets or housings carried into the ocean. therefore, indonesia government continues to reduce and manage waste. to that end, synergize with various parties, ministry of environment and forestry through the directorate general of waste management, and hazardous toxic materials perform various strategies. in implementing this action plan, indonesian government enacted presidential regulation no. 97/2017 on the strategic policy of household and waste management of similar household waste. the policy is translated into two major works: waste reduction and waste management (klhk, 2018). waste reduction is done by waste restriction, reuse, and recycling. while handling of waste is done by the stages of sorting, collection, transportation, processing, until the final processing. through this policy direction, ministry of environment and forestry targets 30% waste reduction and waste handling 70% below the rate of waste generation under conditions without any reduction policy intervention until 2025. it is based on the percentage of waste generation that is managed and decreased for 5 years. from 2015 to 2019, the percentage of waste generation managed by 80% and the percentage of waste reduction reaches 20% (klhk, 2018). as mandated in law no. 18 of 2008 on waste management and in order to implement waste reduction, a further major program needs to be developed is the reduction of waste in waste generation sources. in order to encourage community behavior to be more prudent in the use of plastic bags and awareness in efforts to reduce waste generation ministry of environment and forestry issued a policy of circular letter number: s.1230/pslb3-ps/2016 on pricing and mechanism of implementation of paid plastic bags throughout modern retail market outlets in indonesia. the results of that policy showed 25-30% reduction in the use of plastic bags, which had a direct impact on the reduction of plastic bags. gradually there is a reduction of waste generation that burdens the environment, especially the final processing place, rivers and seas. in addition, from the retail business side there is efficiency through the decrease of retail operational cost in the provision of plastic shopping bags without reducing the amount of sales. from the results of monitoring and evaluation conducted, there are some findings that must be followed up, especially the need to conduct activities of communication, information and education to the public massively, systematically and extensively. movement affects the community is very necessary given the considerable attention and public response with indications of 87.2% of the community jils (journal of indonesian legal studies) volume 4(2) 2019 181 available online at http://journal.unnes.ac.id/sju/index.php/jils support and 91.6% of the public are willing to bring their own shopping bags from home. in addition to the pilot program introducing charges for plastic bags, the indonesian government is also implementing new waste management strategy. indonesian government is emerging the application of technology turning discarded plastic into road-building material of asphalt road, socalled plastic tar road. indonesia has already carried out the plastic tar road technology pilot project from july to december 2017 to several road locations for approximately 10 km, with a road width ranging from 7 meters. some successful pilot projects were applied at the udayana university in bali for 1.9 km, sultan agung street, bekasi for 2.6 km, maros street, makassar, the 11 march university road, solo, gempol highway, surabaya along the 1.1 km, cilincing raya street, north jakarta, and the tangerang – merak toll road (coordinating minister for maritime affairs, 2017). application of technology is important to control plastic litter. the application of technology including the application of science based management to control marine plastic problem. the significant importance of societal efforts to reduce, recycle, and reuse plastic litter to be advanced since early age also became the key important aspect to handling marine plastic litter in indonesia (npoa, 2017-2025). education, outreach, and awareness are also effective ways and key importance to promote change to limit indiscriminate disposal. therefore, indonesian government is giving more effort to increase the awareness of the indonesian citizen on the marine plastic problem through environmental education. environmental education is a process that allows individuals to explore environmental issues, engage in problem solving, and take action to improve the environment. as a result, individuals develop a deeper understanding of environmental issues and have skills to make informed and responsible decisions (epa, 2018). environmental education and awareness is one of the five strategies program in combating marine plastic litter under the indonesia’s plan of action on marine plastic litter. promoting the marine environment education and awareness in schools would be an effective tool to mitigate plastic pollution. by targeting youth habits, practices can be fostered that may indirectly involve marine environment protection (shauna pettipas, meagan bernier, tony r. walker 2016). improvement behavioral change have done by indonesian government by educating young people, increasing stakeholder awareness, intergovernmental collaboration, challenging of eliminating waste. unfortunately, education of the marine environment protection has not been up to curriculum development in formal education such as junior and senior high school, environmental education is only done through seminars and training. 182 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils the waste problem in indonesia has experienced the problem especially since tragedy of garbage slide at leuwi gajah landfill on february 21, 2005. this tragedy caused 141 people died and 6 people were injured. this tragedy then celebrated as the national waste day which is held on 21 february every year. the purpose of this national waste day is to raise awareness and active role of indonesian people, from personal, community, to nation in managing waste to realize clean indonesia 2020 garbage. besides that, this national waste day also aims to strengthen the commitment of indonesia as a marine tourism destination country in the world (circular letter of ministry environment and forestry of republic indonesia, no se/menlhksekjen/rokum/plb.3/1/2017). during the year 2018 has registered 3,000 events, and 100 events among them were selected as 100 wonderful premiere events, including 20 events located in the national park. 3. challenges and barriers there are still challenges and barriers in addressing marine plastic litter in indonesia, including legal, waste management strategies, education and financial barriers. the first challenge in addressing marine plastic litter in indonesia is the lack of specialized legislation on marine plastic litter. although indonesia has enacted legal basis of the protection of marine environment, but those law doesn’t have specific law regarding to the marine plastic litter. presidential regulation no. 18/2018 also doesn’t specifically address marine plastic litter. this regulation is more likely a guideline in handling marine plastic through indonesia’s npoa. therefore, these studies proposed indonesian government to adopt specific legislation, policy and management measures to preventing, reducing and managing marine plastic litter. based on the hierarchy of waste management, preventive measures are the most strategically assessed measures and this step is focused on avoiding the generation of marine waste or preventing garbage from entering the sea. measurements of this type include source reduction, waste reuse and recycling, waste-to-energy conversion, harbor receiving facilities, safety marks, debris at entry points to beneficiary waters and various land-based waste management initiatives. for instant, indonesia should develop and implement laws to ban land-based materials commonly found in marine litter. in this case plastic should be of particular concern, although plastic is not the only source of waste in the ocean, but this plastic is the most significant and one of the most dangerous for the environment, ecosystems and animals that are in the sea. few countries such as united states, spain, portugal, mexico and jils (journal of indonesian legal studies) volume 4(2) 2019 183 available online at http://journal.unnes.ac.id/sju/index.php/jils japan, have laws governing the production and use of land-based materials causing marine plastic litter. prohibiting manufacture of nurdles (preproduction plastic) is one of the preventive measure that used in some countries to prevent plastic waste. those countries have undertaken voluntary nurdle management efforts, but few legislative bodies have passed laws to govern nurdle manufacture or handling. in 2007, california passed a law requiring best management practices for companies that manufacture, handle, and transport nurdles (unep, 2016). banning plastic bags is also seen as the most appropriate step to handle this amount of plastic litter. in this regards, bangladesh was the first country to ban plastic bags. other countries that also agree on this plastic ban are south africa, they banned plastic bags under 30 microns and imposed a 46-randcent levy on thicker bags. in june 2008, china issued law on banned the production, use and sale of ultrathin shopping bags (sc go g [2008] no.72). rwanda may have gone the farthest to banned the import of all such plastic bags (law no 57/2008 rwanda management authority). violators face stiff penalties and fine. the law also requires everyone to request written permission to the rwandan environmental management authority if they wish to sell, use, import or manufacture plastics, along with the reason for the request and also the ways to carry out polyethylene waste (kardis, 2014). basically indonesian government through ministry of environment and forestry issued a policy of circular letter number: s.1230 / pslb3-ps / 2015 on pricing and mechanism of implementation of paid plastic bags throughout modern retail market outlets in indonesia. it has been carried out trial of the implementation of this policy on 21 february until may 2016 followed by 23 cities in indonesia. the results of the pilot monitoring of the activity showed 25-30% reduction in the use of plastic bags, and there is a reduction of waste generation, especially the final processing place, rivers, and seas. the ministry of environment and forestry for the second time issued a circular letter concerning the application of paid plastic by circular no. se-08 / plsb3 / ps / plb.0 / 5/2016 on june 8, 2016. the letter stated that the second trial will continue throughout 2016 until the government issues regulations governing the use of this plastic. however, until now the indonesian government still has not issued regulations on this paid plastic bag. on the other hand, some big cities in indonesia have enacted paid bag policy through provincial regulation. the indonesian government in this case lacks the commitment to issue and enforce regulations on this paid plastic bag policy. further research concerning of the sources, fate, distribution, estimated quantities, and potential impacts of plastics in the marine 184 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils environment is imperative. the research should be focused at local, regional, and global scales, because sources, circumstances, capabilities, and mitigation strategies will vary each level. apart from preventive measure, this research studies also suggests indonesian government to continuously implementing removement measure to reduce marine plastic litter. this measure aims to remove marine plastic litter that already present in the marine environment. behavior-changing measure also must be considered for indonesia government which aims to influence behavior in such a way that people engage in activities that help reduce marine plastic litter. conclusion marine plastic litter is a complex problem in the marine environment and became big challenge for indonesian government. therefore, addressing marine plastic is hard to solve by single regulation or institutions. coordination between regulations, institution and indonesian citizen is definitely required. this studies have undertaken analysis of the indonesia response and recent development of law and policy in addressing marine plastic litter. it considered a wide range of regulatory instruments and laws and indonesian policy relating to the protection of marine environment in indonesia such as law no 32 of 2014 on the sea law no 32 of 2009 on the protection and management marine environment, government regulation no. 19 of 1999 on control marine contamination/ damage, government regulation no. 21 of 2010 on marine environment protection and law no. 18 of 2008 on waste management. this studies also analysis of the current development of indonesian policy on marine liter such as presidential decree no. 16/2017 on ocean policy and presidential regulation no. 18/2018 on handling marine litter. with this 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trends of mass violence; crime nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 4 issue 2, november 2019 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) 218 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 217 table of contents ………………………………...………….….. 218 introduction ………………………………………………………. 219 i. mass violence, stigma, and crimes …………………... 219 a. some factors of mass violence existence ……………..……….. 219 b. criminogens and mass violence ….………………….…………. 220 ii. method ………………………………………..…………………... 220 legal crisis and mass violence ……...……………………. 221 i. how can mass violence occur? ………………………… 221 a. crisis of the law of mass violence ……………………………… 221 the rules out of the community’s mind: problems of indonesian communities ………………………………..... 223 i. the law weaknesses ……………………………………….... 223 a. the problems of the law weaknesses ………………………….. 223 b. principle of lex certa and its problems ………………………..... 223 c. essential aspects of lex certa ……………………………………. 225 ii. issues of apparatus in law enforcement ………... 226 a. law enforcement and legal apparatus ………………………… 226 b. law enforcement and moral awareness ……………………..... 228 c. community factors in contributing to law enforcement …… 228 facilities and infrastructure on law enforcement: some serious problems: some serious problems ……………………………………………………………… 229 how the law can prevent the collective violence? ……………………………………………………………… 231 conclusion ……………………………………………………..…… 232 references …………………………………………………………… 234 copyright © 2019 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. how to cite: utari, i.s. (2019). legal crisis and trends of mass violence in indonesia. jils (journal of indonesian legal studies), 4(2), 217-240. doi: https://doi.org/10.15294/jils.v4i2.34671. jils (journal of indonesian legal studies) volume 4(2) 2019 219 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction i. mass violence, stigma, and crimes a. some factors of mass violence existence mass violence in various regions in indonesia, has caused socio-juridical impacts which are quite basic. various social control institutions, both formal and informal, were felt unable to reduce the occurrence of these events (utari, 2018). the frequency of mass violence which from time to time tends to increase, has caused unrest and tension in the community (issa et al., 2016). at the level of discourse, there is an opinion that mass violence is only a result of the euphoria of freedom. citizens are often impatient, lose orientation, which is the reason for society's disobedience to the law (bahou & zakharia, 2019). the root of violence seems to lie within the individual community members, whereas in fact there are many factors as a trigger for mass violence (cho, 2019; prayogo, amanah, pradana, & rodiyah, 2019). many theoretical perspectives have been put forward to explain collective violence. some studies draw different conclusions about the issue of collective violence in question. there is a link with historical factors of radicalism in the past (mulyadi, et al, 1999). there are also those who suspect that ethnic, religious, racial, and inter-group factors are the root causes of this alarming phenomenon (kleden, 1999). then not a few also assume that social inequality between residents is an element that accelerates the escalation of social division (social segregation) (arief & sasono, 1997). not only that there are also highlights as a result of development that is wrong in implementing economic, political, social and cultural policies, causing various development problems such as poverty, economic inequality and income, marginalization and so forth. sources of riots in the past government are often seen as the impact of social and economic jealousy problems between indigenous people and migrants (graham, 2018; ariyanti & ramadhan, 2019). but sometimes there is a reduction as if social problems only cone on the stigma of indigenous and non-indigenous (ozkan, 2016). if a little careful, since the early 1990s there has been a kind of symptom of a change in social problems that is more complex than the indigenous pattern of vis-a-vis non-natives, becoming a pattern of native population vis-a-vis (migrant) as happened in sambas, west kalimantan, as well as at the beginning of the conflict that occurred in ambon (tanya, 2017). another pattern that is growing is the occurrence of social 220 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils dimension of religious opposition. this pattern develops especially in certain areas (issa et al., 2016). on the other hand, the pattern of conflict can also be linked to elite conflict both at the central and local levels. another approach explains that conflict in the form of social unrest in indonesia, is not merely a product (reproduction) of local communities, but is also driven by the presence of outside groups such as provocateurs, elite conflicts, the influence of global information, as well as external parties with an interest in disrupt socio-political, economic conditions at the national and local levels. b. criminogens and mass violence various study results with each approach used, successfully raised various aspects of the background of the riots that occurred so far (bahou & zakharia, 2019). however, these studies have not succeeded in showing the nature of criminogens in various fields of life that exist in indonesian society (graham, 2018). whereas in terms of criminology, every form of violence always grows from the criminogen conditions surrounding the event (artello, hayes, muschert, & spencer, 2015). this study takes such a position, which is trying to reveal and explain the potential for criminogens found in the community environment (system crisis), both concerning the cultural dimension and the legal, political and shared resource allocation dimensions (graham, 2018). the assumption is that social, economic, cultural and political crises in an area have great potential for social tensions and conflicts (both in soft and hard categories such as riots). collective violence will not occur if it is not preceded by accelerator factors, or triggers, even though in an area there are already sources of problems. here it is assumed that the relationships between the three factors (the source of the problem, the accelerator factor, and the triggers) are interrelated and not independent of each other. in the same context, de la roche (1996) sees collective violence as an act of self-help in social control. on the other hand, some observers point out that collective violence is related to social problems faced by the community concerned. charles tilly, on the other hand, defines collective violence, as forms of violence and threats to violence by a group of people involved in a crowd, and against the objects that are around him. on that basis all need an in-depth study with a focus on mass violence. ii. method to obtain accurate answers in this study a qualitative approach was used to classify descriptive research, because it sought to reveal the reality jils (journal of indonesian legal studies) volume 4(2) 2019 221 available online at http://journal.unnes.ac.id/sju/index.php/jils around the issue of collective violence in the study area. in accordance with the essence of the problem being studied, the scientific approach used is the criminological sociology approach. in the context of legal studies, this study belongs to the study of law non-dogmatically. that is, conducting a study of the law descriptively, and not prescriptive (rahardjo, 1974). according to satjipto rahardjo, in studies such as this law is seen as an independent variable, but is related to other subsystems in society. the point emphasized here is to make a description of the reality encountered and try to understand it. therefore, every event or reality is recorded and analyzed to find its connection (rahardjo, 1974). three methods are used at the stage of collecting data from informants, namely observation, in-depth interviews and focus group discussions. the three methods are complementary. data collection using the observation method is useful for capturing situations and circumstances such as traces and locations of acts of violence. in sharpening the analysis, the authors used a criminal sociology approach to study the social conditions of juvenile delinquency. sahetapy (2005) and utari (2012) emphasized that criminology is a science that examines crime as a social problem, as well as its interdisciplinary nature, then the use of theories in analysis is inevitable. in the perspective of criminal sociology, the crisis in the legal field is one of the drivers of violence in addition to other factors, such as cultural, social, political, and economic factors (utari, 2012; muhtada & arifin, 2018). legal crisis and mass violence i. how can mass violence occur? a. crisis of the law of mass violence the legal crisis is one of the precipitating factors that are important for collective violence in indonesian society (fillo, kamper-demarco, brown, stasiewicz, & bradizza, 2019). the legal crisis in indonesia, it must be acknowledged, has contributed to the flourishing of crime (the law being a criminal factor) (lösel & ttofi, 2017). observers and various groups have expressed it in various negative tone statements, such as that law enforcement in indonesia is terrible. the public's view regarding national law is increasingly disrespectful, it is because many violations are not subject to legal sanctions (belenko et al., 2017; erdianti & al-fatih, 2019). there are rules but they are rarely enforced properly—tend to be favoritism, there are courts but are often a den of mafia—buying and selling 222 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils decisions, and there are judges' decisions but often difficult to execute, some of which are free of corruption (van der woude, van der stouwe, & stams, 2017). as a result, there is no certainty that the law is truly an objective norm that applies to all (denney & connor, 2016). there is no guarantee that the process through the court will produce truth and justice (fairchild, gupta-kagan, & stevens andersen, 2019). the reason is it is difficult to be sure that a person who is found guilty must always be punished (stein, deberard, & homan, 2013). in fact there is a tendency of discriminatory treatment between perpetrators of crime from ordinary and economically weak citizens with perpetrators of crimes that are categorized as strong economies, government officials, and even perpetrators from the environment of law enforcement officials themselves (stein et al., 2013). as a result of this, collective disappointment arises over legal institutions (fonseca pego et al., 2018). people lose motivation to obey the law as emphasized by aguilera (2013) so the people in society tend not to believe in the legal process, are not sure of getting justice through the law, and there is a permissive attitude towards violations that occur (aguilera, 2013). today, many community groups no longer pay attention to the authority of existing (formal) decision-making institutions because of disappointment with the law (aguilera, 2013). with the occurrence of activities or unilateral security actions outside the control of the authorities, conducting raids (sweeping) which likes, carrying and demonstrating sharp weapons freely, grabbing and pegging people's land without rights, etc. are examples of acts that are outside the existing legal order (lea & abrams, 2017). the occurrence of a legal crisis so far, cannot be separated from the existence of a variety of issues that are quite serious, both regarding the rule of law, the apparatus, the community, as well as facilities and infrastructure (aguilera, 2013). the following description would like to show the problems referred to in these four dimensions (reidy, sorensen, & cihan, 2018). all of these problems have the potential to be criminogenic factors (graham, 2018). jils (journal of indonesian legal studies) volume 4(2) 2019 223 available online at http://journal.unnes.ac.id/sju/index.php/jils the rules out of the community‘s mind: problems of indonesian communities i. the law weaknesses a. the problems of the law weaknesses categorically, there are a number of weaknesses inherent in the rule of law in indonesia—thus hampering the rule of law (sahetapy, 2005). first, there is a duplication of rules in other countries. an example is the law concerning economic crimes which is duplicated in full from the economic criminal act in the netherlands. this situation is certainly very distorting as stated by kar (2018) because the circumstances and problems of economic crime in the netherlands are different from the situation in indonesia. second, the formulation of multiple interpretations (stein et al., 2013) of rules makes it difficult to obtain certainty. worse, for the unclear provisions are not provided adequate explanation, even there is no explanation at all (fairchild et al., 2019). generally, the section by article explanation section of most laws contains only the words 'quite clear'. so, it is clear enough not to be clear. with multiple interpretations of regulations, there will be opportunities for manipulation in its enforcement (kar, 2018). each party will have a different interpretation of a provision, which in turn creates legal uncertainty (brotto, sinnamon, & petherick, 2017). in many cases, parties often infiltrate their interests in the multiple interpretations of the regulatory gaps (spruit, schalkwijk, van vugt, & stams, 2016). b. principle of lex certa and its problems in theory, clear and explicit regulatory conditions are known as lex certa. the main function of the lex certa is to guarantee certainty or protection and instrumental functions (tomita & panzaru, 2010). this is related to the universal principle in law, namely the principle of legality (calain & poncin, 2015). as reflected in article 1 of the criminal code, the principle of legality and also the lex certa is directed at the intended protection and instrumental purposes (reidy et al., 2018). the protection function in legality or lex certa, namely the (criminal) law functions to protect the 224 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils people against the exercise of unlimited power by the government (arbach-lucioni, redondo-illescas, singh, & andrés-pueyo, 2014). this has to do with the origin of the principle. from the history of its emergence, the principle of legality is indeed the principle of protection for the people against the unlimited use of power (issa et al., 2016). the context is the ancient regime in western europe in the 17th and 18th centuries. at that time, the ruler with the stndestaat system exercised totalitarianism power, so that people's basic rights were ignored or even trampled on (chalfin & deza, 2019). as people who were disturbed by all forms of despotism at the time, philosophers such as montesquieu, voltaire, together with criminal law experts such as beccaria and de sarvan, through their works fought for the respect for people's basic rights (based on the law nature) (fonseca pego et al., 2018). they oppose the use of power by the authorities that is done according to the taste of "where you like", and without referring to the law or law. their struggle received energy support from the bourgeoisie who finally succeeded in bringing down the pride of the stndestaat with its feudalism. instead, democracy and the rule of law were crowned as new egalitarian and full of freedom. thus, genealogically, the principle of legality (lex certa) together with other principles such as the principle of equality, publicity, proportionality, and subsidiarity inherit the critical-normative nature of power (the ruler). all of these principles, in addition to being used as a measure to assess the fairness of the use of the power of the authorities towards the people, also at the same time function to regulate the "demarcation line" of people's lives which may or may not be entered by the ruling power. this is the historical spirit inherent in the principle of legality, including the principle of lex certa. clearly, unclear and less strict rules can be manipulated to oppress the people. this was proven when the subversion law was used by the new order to suppress anyone who was considered to be at odds with the government. another function of legality (lex certa) is an instrumental function, meaning that within the limits determined by the law the exercise of power by the government to prosecute anyone who violates, is expressly permissible (kijzer, 1989). the basic principle implicit in this instrumental function is, "no unlawful act may be left unpunished". it is not possible for this principle to be implemented if the legal material is multi-interpreted because it opens space for intrusion of interests outside the law itself. in other words, with clear and firm rules, the possibility of allowing impunity for crimes will be very large (cunningham, sorensen, vigen, & woods, 2010). on the principle of "no crime can be left unpunished", the main function of the lex certa principle can be realized, namely the aspect of jils (journal of indonesian legal studies) volume 4(2) 2019 225 available online at http://journal.unnes.ac.id/sju/index.php/jils justice (lösel & ttofi, 2017). this instrumental function requires the state to sue every person who commits an offense. in other words, within the limits determined by law, the exercise of power by the government to sue everyone who violates, is strictly required (fairchild et al., 2019). only through this instrumental function can the guarantee of remedial or corrective justice in law be realized. remedial or corrective justice bases itself on a number of principles, including: (1) every violation must be punished to make up for the consequences. (2) punishment is the "answer" to error. (3) compensation is the "answer" to loss. (4) fines are corrections to illegitimate profits, and many more. the concept of themis, the goddess of justice, actually underlies such principles of justice which is tasked with balancing these principles regardless of who the perpetrators are (flores, hawes, westbrooks, & henderson, 2018). indeed, furthermore the legality (lex certa) is only understood in the protection function which specifically presents aspects of legal certainty. for the sake of certainty, the protection function places the (criminal) law as a bastion of protection for the people against the threat of unlimited use of power from the state or government (haight, bidwell, choi, & cho, 2016) with this function, the criminal law guarantees the right of the people to fight and reject any punishment efforts that are carried out unlawfully (graham, 2018). here the principle is adhered to. "no act can be punished, without a law prohibiting the act beforehand". although the two functions are different, they are complementary (azad & ginner hau, 2018). c. essential aspects of lex certa the two functions cannot be separated because they present two essential aspects of the principle of legality lex certa, namely the aspect of certainty on the one hand, and the aspect of justice on the other. therefore, it is a big mistake if the principle of legality as stated in article 1 of the criminal code is only seen as the principle of certainty alone. third, there is regulatory inflation. an example is the regulations in the investment sector. according to the previous research of sumantoro (1987), an indonesian investment law expert, the regulations governing investment in 1979 were no less than 328 regulations, and in 1981 there were more than 400. it's easy to imagine how difficult and difficult a financier to learn hundreds of these rules for the sake of legal safety. fourth, there are many overlapping rules, both vertically and horizontally. as a result, a violation of one rule may be justified by another rule. no wonder so many violators cannot be punished because of conflicts between these regulations. fifth, the many rules of law that opens up huge 226 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils discretionary space. according to klitgaard, a large discretion without accountability and minus transparency will be the source of corruption and manipulation. extortion in the criminal process that has been rife all this time cannot be separated from the discretionary leeway provided by the criminal procedure code regarding the implementation of forced measures, specifically the detention of a suspect or defendant. all regulatory conditions as illustrated above will cause obstruction of law enforcement. in the context of indonesia so far, the strong spirit of legalism has become one of the main causes of the deterioration of the rule of law. powerlessness ensnared various violations in the 2018 presidential election campaign and the recent regional election campaign, is the latest evidence of the disease of legalism on state land. many cheating practices are done so naked, but they cannot be dealt with only because the editorial or regulatory texts do not explicitly mention the elements of the deviations that occur. therefore he event "sympathizers" or "contributions for small people" that are so actively carried out by the candidate's success team cannot be acted as violations because the text and editorial regulations do not call such activities as campaign activities (tanya, 2006). the essence of congestion is, the tendency to make rules as an end in itself. honesty and wisdom in carrying out the law does not arise. as a result, sensitivity, empathy, and dedication to bring justice and truth are lost due to the strong legalism. a spirit that coute que coute, adore the formalism of rules. the legal process is no longer seen as a struggle for justice and truth, but just a routine activity of turning the articles in black and white. so it is rare to find a legal decision born of a breakthrough in finding justice and truth through creative interpretation of law. the principle of aristotle's epikeia, or plato's equity whose function is to bridge the gap between certainty and justice, is increasingly disappearing from law enforcement activities. in the midst of most people (including law enforcement officials) controlled by pragmatic-naive attitudes, legalism and formalism have become the most powerful tools for the practice of evil in the name of legal certainty. ii. issues of apparatus in law enforcement a. law enforcement and legal apparatus in general, the public knows that the factor of law enforcement is one of the sources of law enforcement bottlenecks so far (roland & verdier, 2003). practices such as buying and selling cases, judicial mafia, bribery, violence during hearings, etc., are events that are already fairly common in the legal world in indonesia. almost all elements of the justice system are jils (journal of indonesian legal studies) volume 4(2) 2019 227 available online at http://journal.unnes.ac.id/sju/index.php/jils infected by such practices. the causes are varied, ranging from low income, lack of professionalism, low skills, low commitment, and lack of internal and external control (volokh, 2015). the lack of legal control causes distortion in the application of law such as the application of imprecise rules or impunity (allowing an offense not to be punished). likewise, the lack of juridical technical ability results in a misguided legal process. lack of moral integration will lead to manipulation and other corrupt actions in the legal process (sundström, 2015). while the lack of professionalism and discipline, will result in the emergence of inefficient legal processes and manipulation practices (kar, 2018). it is not a public secret, if since the investigation process in the police, the prosecution process at the prosecutor's office, as well as the trial process in the court there have been bribery and extortion (sundström, 2015). almost every step has its own rate, so it's no wonder that many law enforcement agencies have far greater wealth than their official income. all that is just a small example and only the tip of the iceberg is visible. it is not uncommon to see a policeman, prosecutor or judge, people just don't respect at all. at the end of 1995, kompas newspaper revealed the results of a survey about the police in the eyes of the public. the results were very alarming, 70% of 1,106 telephone owners in eight cities scattered from west (palembang) to east (manado), from big cities (jakarta) to small cities (samarinda), were antipathy towards the police. this is a worrisome condition because the deterioration of the authority of the police has turned out to be so severe and smelled everywhere (van der woude et al., 2017). the police—"confidants", friends, protectors, and helpers who are closest to the community, are "hated". the hatred was evenly distributed, from the west end to the east, from metropolis to the "small town" (roland & verdier, 2003). this situation is, of course, unfortunate. the police work, which was clearly scattered everywhere for twenty-four hours, turned out to be disappointing (volokh, 2015). it is not impossible the impact will be very broad throughout the entire justice system. the bad news about the actions of judges and prosecutors in several places, undoubtedly feels to be a real experience of the indonesian people, because "close people" (police) alone, "unfaithful". (fonseca pego et al., 2018). in short, the law, especially the enforcement process on various levels, will be hard to believe and even disappointing. when disappointment is not also remedied, the community will spill it in its own way, including in the form of collective violence (tomita & panzaru, 2010). the latter, has been embodied in the series of vigilante actions which now adorn the universe (tanya, 2009). before the reform, basically the police had tried to improve their image through changing into a more shady and friendly uniform. even soon 228 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils after entering the realm of reform, the police broke away from the military structure, along with military symbols. but the improvement of the image, it is not enough just to change uniforms and rhetoric separated from the military. convincing people of who we are, said allen wheelis requires more than words. (chui & chan, 2011) who we are, wheelis says, is determined by what we do, not by what we aspire to. in short, the image (of the police) is determined by concrete actions that give security to all levels of society. b. law enforcement and moral awareness using the framework of lawrence kohlberg, the moral awareness of law enforcement officers in this country, is still at a pre-conventional level of morality. in a morality like this, the implementation of law enforcement is carried out according to the instinct of profit and loss calculation and punishment (tanya, et al, 2008). this is often called childish morality. their obedience to the rules should be not only willingly and aware that the rules are true and good, but for fear of being sanctioned. their obedience is oriented towards punishment (korkeamäki, koskinen, & takalo, 2007). why a person doesn't break the law, not because they are aware of the law but rather afraid of being fired. so the question is not whether "blackmailing" is good or bad. the problem is, what is the punishment (fleming et al., 2019). if the sentence is very light, then he will do the blackmail. there are so many of our legal apparatus with childish morals. it often happens, it is not uncommon for an officer to just violate when a red light is on in a road blockage, because it is 2.00 in the morning, nobody is watching (tao & kim, 2017). it is totally different from the law enforcers in japan, they never break the rules even though they are not seen by anyone. aside from being still oriented to punishment, many of our officers act based on profit and loss. often an officer knows that his leader is corrupt (fleming et al., 2019). but whether he will report his leadership to the authorities is largely determined by the calculation of the pros and cons. in the further context, also stated that it is advantageous for him report or 'greetings of peace' with his boss. indeed, kohlberg said, on pre-conventional morality, the focal point was self. this is a disease of morality that plagues many law enforcement officers in indonesia (roland & verdier, 2003). c. community factors in contributing to law enforcement the awareness and legal obedience factor of the community also influences the weak enforcement of the rule of law. the existence of a police statue jils (journal of indonesian legal studies) volume 4(2) 2019 229 available online at http://journal.unnes.ac.id/sju/index.php/jils scattered on the sides of the road is a reflection of the low level of legal awareness in our society (forman, jr., 2017) obedience to the law is determined by the presence or absence of supervision. in addition, the occurrence of bribery in the legal process because the community prefers 'shortcuts' rather than follows the normal process. upholding the rule of law is also often hampered by the lack of community support, as in the case of terrorism so far (calain & poncin, 2015). vigilantism, coercion, permissiveness in surrounding crime, unilateral raids, intolerance towards others and so on, are just a few examples of how weak community participation is in upholding the rule of law (azad & ginner hau, 2018). facilities and infrastructure on law enforcement: some serious problems the limitations of facilities and infrastructure arguably are endemic issues of all justice sub-systems in indonesia. advanced technology facilities are still very minimal. dna testing, for example, still has to be done abroad. at the simplest level, we can easily see flaws here and there, for example, a very narrow workspace, very limited work facilities and so forth (flores et al., 2018). this situation does not only occur in one particular institution or unit, but is almost evenly distributed across all sub-systems. whereas inadequate support for facilities will be an obstacle for law enforcement officials to handle contemporary law cases that are increasingly sophisticated and of a new dimension (belenko et al., 2017). facing contemporary legal cases with new dimensions (such as terrorism, money laundering, cybercrime, corruption, smuggling, etc.) and our law enforcement agencies often face difficulties due to the lack of available facilities. in the midst of a sophisticated world of crime, without serious steps to reform the facilities and infrastructure, efforts to uphold the rule of law will be difficult to realize (hay, widdowson, & young, 2018; kharismadohan, 2019). the weak and limited condition of law enforcement as seen above has a negative effect on efforts to recover the national crisis facing this nation. this can be witnessed through the fact of law enforcement in almost all existing (tacconi, rodrigues, maryudi, & muttaqin, 2019). the case of the 'sale' of the islands around komodo some time ago is an example of the case of the weak implications of law enforcement regarding the existence of the territory of the republic of indonesia (specifically the weak enforcement of agrarian law and the disorder of land administration). 230 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils cases of illegal logging, abuse of forest use rights, violations of the conversion of protected area functions, as well as the burning of forest areas by industrial forest holders that occur from time to time, are just a few examples of weak law enforcement related to the natural resource landscape. as for demographics, cases such as illegal dwelling, violations and manipulation of population administration, lack of adequate legal protection for peripheral groups, etc. without serious reform in all these fields, similar incidents will be repeated again—which the last agency will trigger more serious crimes. kidnappings, killings, accusations of subversion and stigmatization of 'anti-pancasila' against individuals and groups with differing views and ideological understandings, especially in the new order era, are evidence of the weakness of the rule of law regarding ideological issues. yet not infrequently, the emergence of a critical attitude and skepticism with an ideological nuance, is an expression of dissatisfaction with the policies and behavior of the power elite that is corrupt, discriminatory, arbitrary, manipulative-which does not reflect the nobility of the values of pancasila. the failure of the state to present meaningfully the values of pancasila in all development policies and national life will always trigger alternative thinking, including in the ideological field (arbach-lucioni et al., 2014). weak enforcement of the rule of law in the political field, marked by many cases that have occurred so far, such as: the existence of legislation in the political field in favor of major parties, restrictions on the right of people to nominate 'independent candidates' (not through parties) in elections presidents and regional heads, criminalization of the white group, widespread money politics in the elections, fake diploma cases, various manipulations in the electoral process and so on. the ongoing economic crisis, one of the reasons is due to weak law enforcement (korkeamäki et al., 2007). corruption, collusion and nepotism are still ongoing and developing because law enforcement is pursued by 'selective logging'. actors who are close to the center of power and who take shelter under the ruling political power, tend not to be touched by the law (grajzl & baniak, 2018). hundreds of trillions of rupiah in state funds that were taken away by corrupt and big-time debtors have still not been returned to the state treasury. while smuggling, tax evasion, excise manipulation, illegal logging, illegal fishing, environmental pollution and so on, have not been fully handled legally. the integration of steps between the criminal justice sub-systems has not yet been created. (bootsman, 2018). as a result, the results of the efforts of one sub-system are countered by other sub-systems. in the socio-cultural sector, due to weak law enforcement, various cases have emerged that have triggered new crises. in various regions and regions, growing primordialism is increasingly thickening which causes jils (journal of indonesian legal studies) volume 4(2) 2019 231 available online at http://journal.unnes.ac.id/sju/index.php/jils social rifts between groups. the absence of law enforcement against perpetrators of acts of attack, harassment, and intimidation against minority groups for primordial reasons and beliefs, has triggered widespread anxiety and social suspicion (sykes, 2002). this has an impact on the disturbance of security and order, even triggering a crisis of sovereignty through the efforts of victims to seek political asylum in other countries. in the field of defense and security, security disturbances in the form of crime, bomb terror, and horizontal conflict still haunt the community. other problems in the field of defense and security related to state sovereignty, are the outer small islands and large uninhabited and undersupervised large islands, which have the potential for conflicts with other countries regarding inter-state borders (fitzpatrick & rubin, 1995; utari & arifin, 2019). many things have happened in the region, such as the loss of a variety of valuable underwater natural resources, many islands in the indonesian territory, people's lives tend to be dominated by the lives of neighboring countries, on the angel island that is occupied and managed by foreign parties not according to procedures, at the border east nusa tenggara and east timor border crossings and smuggling of goods, on the border of papua with papua new guinea border crossings by opm (free papua organization), in kalimantan boundaries between the two countries often move which tend to harm indonesia, the occurrence of illegal logging and sold to unscrupulous malaysian businessmen, also smuggling goods. how the law can prevent the collective violence? in accordance with the logic of a pluralistic indonesian society, the strategy needed must be able to prevent negative friction between groups (topdown), including between the government and the people. this is important to avoid the accumulation of gaps, jealousy, disappointment, poverty, unemployment, and despair experienced by the periphery. that way, collective violence can be prevented. juridical strategies in accordance with the above purpose are responsive strategies as intended by nonetselznick (philippe nonet & philip selznick, 1978), and or progressive strategies as intended by rahardjo (2002), that the idea was first put forward in 2002 through an article written in kompas daily with the title "indonesia needs progressive law enforcement" (kompas, 15 june 2002). this strategy was proposed because the current legal regime is elitist in nature and tends to be rule oriented (simpson, 2019). juridical strategies that are responsive and progressive are not rule oriented but people 232 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils oriented, namely a juridical order that gives space for the interests of the small people to obtain maximum protection for a decent life as citizens.(lee, 2016) that is why, a responsive and progressive juridical strategy has at least ten basic elements, but legal strategy is only one of the strategies that need to be taken to prevent collective violence (worrall & kjaerulf, 2019). these strategies are very potential to fix criminal conditions that allow collective violence to occur. conclusion the outbreak of riots (collective violence) in events was driven by four things: (i). polarization of identity formed during a relatively long time in almost all fields. in fact, often the sorting is increasingly exploited politically in the form of identity politics. this becomes a structural driving factor (structural conduciveness) for the emergence of violence. (ii). the escalation of structural tension in the form of suspicion and prejudice is mounting, both due to increasingly extensive and intensive structural polarization and due to the formation of a kind of general awareness about polarization that occurs so as to create social distance that is increasingly distant and coupled with anti-starch feelings. (iii). there are precipitating factors in the form of incidents which become the outbreak of violence. first, with the economic and political crisis at the same time, law and order play no role in managing the nation-state-community management process throughout the country. under these conditions to reduce collective violence in terms of legal reform, a responsive and progressive juridical strategy has at least ten basic elements (see table 1). first, the legal order that is pro-people. the legal order in all fields must place the interests and needs of people as their ideology. second is to strive for the liberation of the poor as the main goal. third, guaranteeing social justice as a basis for legitimacy. fourth, human wisdom (law enforcement officers) is the key word for the application of law for the achievement of justice. fifth, the implementation of law is carried out creatively in which sensitivity, empathy, and dedication in the administration and law enforcement are the spearhead. sixth, the content of the legal order must be based on factual problems faced by small communities, which means that the determination of regulatory material in various fields must be participatory. seventh, each rule of law in all fields must function as a facilitator in meeting the needs and aspirations of the community. here, the law not only provides easy and rational procedures, but must also be competent and fair. it must be a manifestation of public desires and have a commitment to the achievement of substantive justice. jils (journal of indonesian legal studies) volume 4(2) 2019 233 available online at http://journal.unnes.ac.id/sju/index.php/jils eighth, the main focus of regulation in the economic field must be to strengthen the ability of the lower classes to have access to existing resources to meet their needs. ninth, the legal structure in the field must be open and tolerant of local institutions. the role of informal institutions at the local level in community empowerment must be encouraged. therefore it must recognize a decentralized decision making process. tenth, official institutions related to legal socialization must create a coalition and communication network with autonomous and independent local organizations, which include beneficiary groups, informal leaders, local governments, ngos and so on. the substance and structure of the law must be carried out while respecting the values of society, especially those that sustain their existence as autonomous communities. table 1 legal model configuration matrix from the matrix that the government needs to make legal regulations concerning the equal rights of citizens in the frame of the unitary republic of indonesia. this is important to avoid mastery over the concept of parochialism which is the axis of latent conflict so far. this step also needs to be supported by increasing legal authority through progressive and responsive legal management. the need for empowerment of the people's economy nationally by avoiding program biased groups. at the level of resource allocation, in addition to the need for a more equitable distribution of economic distribution systems, it is also necessary to create relationships that better reflect justice. attitudes or actions that suggest inequality and injustice must end immediately. decision-making institutions (both formal and informal at the central and regional levels) must be made to act as agents and implementers of community aspirations. the trust and authority given no elements characteristic 1 value allegiance to the people (poor) 2 destination objectives liberation of people from poverty 3 legal content factual problems of society (peripheral) 4 focus focus on strengthening and protection regulations 5 legitimacy the policy support 6 function fulfilment of community needs 7 structure properties open to local institutions 8 executing creative and empathetic apparatus 9 socialization network creation 10 implementation respect local values 234 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils by the people must be used for the benefit of the people, not manipulated for their own interests. refferences aguilera, e. r. 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(2016). the relation between self-conscious emotions and delinquency: a meta-analysis. aggression and violent behavior, 28, 12–20. https://doi.org/10.1016/j.avb.2016.03.009 stein, d. m., deberard, s., & homan, k. (2013). predicting success and failure in juvenile drug treatment court: a meta-analytic review. journal of substance abuse treatment, 44(2), 159–168. https://doi.org/10.1016/j.jsat.2012.07.002 sundström, a. (2015). covenants with broken swords: corruption and law enforcement in governance of the commons. global environmental change, 31, 253–262. https://doi.org/10.1016/j.gloenvcha.2015.02.002 sykes, g.m., & messinger, s.l. (2002). theoritical studies in the social organization of the prison. new york: science research council. tanya, b. l. (2006). hukum, politik, dan kkn. surabaya: srikandi. tanya, b. l. et al. (2006). teori hukum: teori tertib manusia linttas ruang dan generasi. surabaya: cv kita tacconi, l., rodrigues, r. j., maryudi, a., & muttaqin, m. z. (2019). law enforcement and deforestation: lessons for indonesia from brazil. forest policy and economics, 108(june), 101943. https://doi.org/10.1016/j.forpol.2019.05.029 tao, w., & kim, s. (2017). application of two under-researched typologies in crisis communication: ethics of justice vs. care and public relations vs. legal strategies. public relations review, 43(4), 690–699. https://doi.org/10.1016/j.pubrev.2017.06.003 tomita, m., & panzaru, c. (2010). forms of quasi coercive treatment for resocialization of juvenile offenders. procedia social and behavioral sciences, 2(2), 4164–4171. https://doi.org/10.1016/j.sbspro.2010.03.658 utari, i.s. (2012). aliran dan teori kriminologi. yogyakarta: thafa media. jils (journal of indonesian legal studies) volume 4(2) 2019 239 available online at http://journal.unnes.ac.id/sju/index.php/jils utari, i.s. (2018). kontrol sosial dan tren prilaku anak dalam studi kriminologi. semarang: sanggar krida aditama. utari, i. s., & arifin, r. (2019). law enforcement and legal reform in indonesia and global context: how the law responds to community development?. journal of law and legal reform, 1(1), 1-4. https://doi.org/10.15294/law & legal reform.v1i1.35772 van der woude, l. b., van der stouwe, t., & stams, g. j. j. m. (2017). differences between risk factors for truancy and delinquency in dutch adolescents. children and youth services review, 73(1), 9–14. https://doi.org/10.1016/j.childyouth.2016.11.028 volokh, a. (2015). law: economics of its public enforcement. in international encyclopedia of the social & behavioral sciences: second edition (second edition, vol. 12). https://doi.org/10.1016/b978-0-08-0970868.86061-4 worrall, r., & kjaerulf, f. (2019). transforming minds, people and places: leadership coalition building as catalyst for intersectoral collaboratives in urban violence prevention. aggression and violent behavior, 47, 282-292. https://doi.org/10.1016/j.avb.2019.02.012 240 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils quote intolerance is itself a form of violence and an obstacle to the growth of a true democratic spirit mahatma gandhi jils (journal of indonesian legal studies) volume 5(2) 2020 505 available online at http://journal.unnes.ac.id/sju/index.php/jils book review influence of globalization era on business law in indonesia: a book review pengaruh era globalisasi terhadap hukum bisnis di indonesia, dr. edy santoso, kencana jakarta timur, 2018, 244 pages, isbn 978-602-422-191-1 juan anthonio kambuno faculty of law, universitas negeri semarang, indonesia kambunojuan@students.unnes.ac.id 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. title of book : pengaruh era globalisasi terhadap hukum bisnis di indonesia author : dr. edy santoso language : indonesia, bahasa publisher : kencana, jakarta pages : 244 pages year : 2018 how to cite kambuno, j. a. (2020). influence of globalization era on business law in indonesia: a book review pengaruh era globalisasi terhadap hukum bisnis di indonesia, dr. edy santoso, kencana jakarta timur, 2018, 244 pages, isbn 978-602-422-191-1. jils (journal of indonesian legal studies), 5(2), 505-5012. https://doi.org/10.15294/jils.v5i2.34811 nationally accredited journal (sinta 2) jils (journal of indonesian legal studies) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue 2, november 2020 issn (print) 2548-1584 issn (online) 2548-1592 http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-7998-9696 506 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils legal theory is a very critical discipline of law, in an interdisciplinary perspective, analyzing various aspects of legal phenomena, individually or as a whole, with the aim of gaining a better understanding and clearer explanation of available legal materials. legal theory is not a normative form but is subjective in nature, which cannot resolve legal issues concretely in court, but must be processed in as much detail as possible and then be used as jurisprudence for lower decisions in the future. legal theory will be an additional consideration for judges to decide cases later. this book provides knowledge that the legal system in indonesia is more inclined to the application of the continental european legal system, where in the continental european legal system recognizes the existence of individual property rights that are absolute. there is a difference between the continental european legal system and anglo saxon. the anglo saxon system is known as dual ownership (dual ownership), a system that recognizes that ownership rights are legally recognized and legal ownership and beneficiary/economy owner. in fact, this legal system places jurisprudence as the main source of law. jurisprudence in this context is based on cases decided in court which are essentially felt to be more flexible and adaptable. the law of property is very closely related to material law, where the material law is the law of things (zaaken recht), which is the overall rules governing the legal relationship between a person and matter. the word zaak (dutch) is translated with objects, and sometimes with goods. what is regulated in the law of objects is about the notion of objects, the differentiation of various objects, and various material rights. intellectual property rights are exclusive rights, where this arises for the results of human thought that produce a product or process that is useful for humans. this intellectual right only exists when the intellectual abilities of human beings have formed something that can be seen, heard, read, or used practically. the legal protection of intellectual property is very important for the creator and inventor to protect the results of his work. this is because a great sacrifice for the results of his work is very unfair if it is simply imitated and commercialized by people who are not responsible. intellectual property rights play an important role in international trade, which can support the economic development of a country. in addition, http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 507 available online at http://journal.unnes.ac.id/sju/index.php/jils intellectual property rights are seen as a very important company asset to create products and services that benefit the community. therefore, a person's intellectual work can be recognized as an object of protection. every human work must be respected and obtain rights so that intellectual property gets its basis on property rights in the general sense, namely property rights as human rights. property rights under the civil law system which constitutes the continental european legal system are recognizing absolute rights. the article indicates that ownership rights are exclusive in nature, and this article gives the creator the broadest possible rights to use his property for his purposes. therefore, it is natural that the creator or inventor finally has the right to get a reward commensurate with the value of the work given to the public at large. the results of the creation of a person or group is a very valuable asset for its creators and at the same time a national asset that has a significant impact in realizing the prosperity of the community. copyright not only has economic rights, but also has moral rights that need to be protected as a form of appreciation or incentives given by the government to inventors to actively create things that are more beneficial to the public at large. the emergence of the asean-china free trade agreement presents challenges and at the same times and opportunity to explore creativity in creating innovative products. this is because chinese products dominate the supply of imported goods so that they have a wide-ranging impact on the economy of the indonesian people, especially among industries that are in the middle to lower level. the impact of this international agreement is that the value of indonesia's exports in 2009 dropped quite sharply, reaching 14.98%. therefore, the role of intellectual property rights is very important because trademarks, trade secrets, logos, patents, etc. are part of intellectual property rights that can protect the rights of the work of the creative community of indonesia. so, it does not fade the spirit in creating creative products that can attract the attention of consumers and win the competition. unfortunately, intellectual property rights only have a big positive impact on developed countries that have innovative products with high technological quality because they can enjoy economic rights that lead to large profits, by setting prices for their own benefits because they have monopoly rights. but the negative impact on developing countries, like indonesia, will be felt on the economy. this is because industries in http://journal.unnes.ac.id/sju/index.php/jils 508 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesia are largely dependent on the agriculture, manufacturing, and service sectors. therefore, the protection of intellectual property rights would have little impact on the indonesian economy. related to monopoly rights, this is contrary to the principles of islamic law because it causes a lack of sharing of knowledge to the public, where the purpose of making the latest work is useful to provide benefits to the community from the creation or finding it. finally, holders of intellectual property rights have a private right whether they hope to protect and utilize their economic rights or not, because it will be related to the public interest and benefit of muslims as a whole. on the other hand, in the concept of islamic law, the concept of protection of intellectual property rights is acceptable and does not conflict with islamic law. the result of the creation of the human mind is a personal effort to validate them, so that they can live from their efforts, which in this case can be claimed as private property. and the sharia emphasizes that ideas must come from their sources and expressly condemns the false attribution of one's work to others. the existence of intellectual property rights itself is expected to provide motivation for the indonesian people to be more creative in creating things that are beneficial to everyone, including creating creative works, such as batik motifs. with unesco's recognition of batik as indonesia's cultural heritage, it should be able to be used as a trigger for the emergence of community creativity to create other batik art in the future. so that intangible assets belonging to the indonesian people can be maintained. thus, act no. 28 of 2014 as into government regulations in act substitute no. 19 of 2002 concerning copyright will be more effective application. the government also, as the copyright holder of indonesian works, can prevent monopoly or commercialization as well as acts that damage or commercial use without seizing the republic of indonesia as the copyright holder. so that foreign parties cannot damage the value of indonesian culture. so, concern for the assets of the indonesian people towards the use without rights by other nations is absolutely necessary. therefore, it is hope that some indonesian batik when exported and sold abroad does not have to pay royalties at high prices. at present, the development of information and communication technology causes relations between one country and another to become borderless and social, economic, and cultural relations are rapidly occurring. current information technology contributes to the improvement of the http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 509 available online at http://journal.unnes.ac.id/sju/index.php/jils welfare and progress of human civilization because ideas and information must flow freely on internet. however, as using technology it can be easily copied and is almost similar to the original, and plagiarism, piracy, and illegal plagiarism often occur. therefore, cyber law appears to provide protection for the intellectual property rights of the creator of his work, and impose sanctions on those who violate it. cases in other countries have illustrated the rampant violation of illegal translations and become new international law cases in the current digital era related to violations of moral rights in the copyright regime. google provides a project that is scanning more than 15 million books into its giant search engine. however, this was rejected by judge denny chin because this was exploitation of the entire book, and without permission from the copyright owner. finally, google cancelled this project. in the middle east, compact discs and windows software are hijacked and sold. this can damage the brand value of the windows name. in 2007 in poland, a member of napisy.org was arrested for posting illegally translated results of a film, which was eventually sentenced to two years in prison. however, it is unfortunate that so far, there have not been any similar cases in indonesia, as has happened in america, the middle east and poland. possibly because there is no firmness of sanctions from the government or judges for violating them. in indonesia, there are several laws related to copyright. act no. 11 year 2008 concerning information and electronic transactions. article 25 act of ite provides general protection against issues of intellectual property rights related to cyberspace activities, especially with regard to copyright infringement. article 5 of the uuhc 2014 concerning the moral rights of the creator which is considered irrevocable means that it is the right of the creator if he wants to sell or give permission to others. technological advances have greatly impacted the modern business system that led to free trade using electronic intermediaries (e-commerce). in e-commerce, transactions between sellers and buyers occur without ever meeting physically, and this is done through the internet which enables the creation of a global market. so far, the court in indonesia does not have experience on cases relating to the issue of electronic standard contracts in ecommerce activities, bearing in mind that the problem has not been raised in the court. however, this can happen later. a standard contract is an agreement whose contents are formulated by a party in the form of forms, http://journal.unnes.ac.id/sju/index.php/jils 510 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils with the aim of efficiency and practical reasons. this agreement refers to article 1320 of the civil code which implies the validity of the agreement, at least regarding the agreement, the ability to make an agreement, a certain matter, and legal reasons. before conducting a transaction, the buyer is required to read and agree to the written terms such as terms, terms and conditions, and terms of conditions. in addition, another way to authorize a purchase is to carry out an electronic signature, which has been regulated in article 11 act of ite concerning electronic signatures which gives explicit recognition that electronic signatures have the same status as manual signatures in general which have the power law and legal consequences. standard contracts are recognized and regulated by national regulations in article 18 act no. 8 of 1999 concerning consumer protection. according to the author, the standard contract really aims to be practical and not detrimental to consumers, so it can be used. the reason for the electronic contract is efficiency and some businesspeople accept it. thus, the contract agreement is done by using a click wrap agreement more often done and can almost be said to be rejected by the court. click wrap agreement means the buyer agrees to the terms called standard contracts that have been prepared by clicking i accept, ok, or i agree, before the transaction runs. this is because through a click wrap agreement that is by clicking: i agree or i accept the electronic contract is valid and applies as usual trading, although it applies specifically. in addition, article 1338 civil code states that the form of the agreement is free, can be in written and unwritten form. so, electronic agreements can be made possible. according to the author, if we refer to jurisprudence in foreign countries such as america as an additional source of law, then the agreement of the electronic standard contract is valid and acts like a normal trade, even without signature. on the company side, are prospective buyers aged adults or over 18 years as required by law? if we find out that there are parties who are not capable, then according to the agreed agreement terms can be cancelled. on the consumer side, the object being sold is sometimes very different between the one shown in the photo and the original item. this is what causes problems in making transactions, because consumers feel that the goods, they bought are not in accordance with what is listed in the photo on the website. therefore, in an electronic standard contract, the thing that needs to be avoided by consumers is a rule that contains an exemption or http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 511 available online at http://journal.unnes.ac.id/sju/index.php/jils limitation of liability from business actors which can often be detrimental to the consumer. in fact, the development of information technology offers advantages and disadvantages for online business activities, such as online banking and trade models. the advantages are ease of access, product search, many choices, shopping convenience, and efficiency. there is also a loss that is obtained, namely online banking fraud, such as in malaysia, indonesia, and the united states by way of identity theft mode. in malaysia, statistics from the financial mediation bureau (fmb) show that the number of cases increased from only 46 cases in 2008 to 163 cases in 2010. in indonesia, quoted from kompanasia.com, the number of attacks in indonesia in 2015 reached 48.8 million. in the united states, around 40 percent of fraud was reported to the united states federal trade commission in 2007. the type of identity theft is through email fraud. where the email sent will appear as if it came from a legitimate source or institution, such as a trusted business institution or financial institution, and is urged to request consumer personal information. in addition, fraud also occurs through phishing sites. phishing is a fake site that is designed as if it is very similar to the official website of a company. the site uses a domain name, which the company uses as a trademark. then when a user clicks on the link, it will automatically connect to the fake website. therefore, the victim will enter all of his personal data while logging in, and then the perpetrator can then log in to the victim's real account and steal funds. one of the newest modes of business crime in this globalization era is insider trading on the capital market. insider trading is a practice in which people conduct securities transactions using exclusive information that they have that is not yet available to the public or investors. the case of insider trading is an allegation on the sale of 81.95% of pt petrosea's shares to pt indika energy in 2009 due to an unreasonable transaction that supposedly has to do with the planned sale of pt petrosea (ptro) shares in full. at that time the capital market law (uupm) lacked strong authority. therefore, the capital market supervisory agency (bapepam) requested that the capital market law be amended immediately. in addition, with the act no. 21 of 2011 concerning the financial services authority (ojk), the authority of the fsa is broad enough to be able to guarantee the existence of a law that underlies economic activity in accordance with the market economy. http://journal.unnes.ac.id/sju/index.php/jils 512 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils one of the ways in which international commercial disputes is by arbitration, where the disputes refer to one or more people, with the decision that they agree to be bound. however, this is often misused by the losing party to ask the court to intervene, especially during the execution. prevention for business crimes in this globalization era can be developed by strengthening surveillance which will be very easy to be able to quickly detect the occurrence of contra in business in indonesia. in addition, socialization is needed to the public about the use of technology that is growing rapidly now. and enforce the law to provide protection against illegal businesses and protection of intellectual property rights. nowadays, the role of law is not only needed in regulating various fields affected by globalization and free trade. a greater legal role is needed in providing protection for weak parties. which protection is really needed, considering that in the era of globalization and free trade, and there are not a few indonesians who are still in poverty and in need of legal protection and serious attention from the government through concrete actions. about authors juan anthonio kambuno is an undergraduate law student at the international program, faculty of law universitas negeri semarang. he is also a researcher at law and tech business studies center. some of his works have been presented at international conferences, such as international conference on indonesian legal studies, semarang (2018, 2019), and asian law conferences, malaysia (2019). some of his papers also have been published in various journals, such as “the bias of plagiarism policy implementation: the challenges in the 21st century age (case of indonesia and malaysia)” (international journal of advanced research in education and society, 2020). http://journal.unnes.ac.id/sju/index.php/jils http://myjms.mohe.gov.my/index.php/ijares/index http://myjms.mohe.gov.my/index.php/ijares/index 161 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 data of book author : ani soetjipto published year : 2013 title : gender & hubungan internasional language : indonesia, bahasa city published : bandung, west java, indonesia publisher : jalasutra isbn : 978-602-825-293-5 page : 320 pages volume 4 issue 01 may 2019 jils 4 (1) 2019, pp. 161-166 issn (print) 2548-1584 issn (online) 2548-1592 book review the position of women in international relationship: a book review gender & hubungan internasional, ani seotjipto, jalasutra bandung, 2013, 320 pages, isbn 978-602-825-293-5 ridho dwiky tastama 10.15294/jils.v4i01.30175 ridho dwiky tastama students at faculty of law universitas negeri semarang  dodotastama@students.unnes.ac.id copyright © 2019 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. gender and feminism are multidisciplinary studies. therefore, when the international relations (hi) study uses a gender lens and feminist perspective, analysis and discussion of international jils (journal of indonesian legal studies) 162 http://journal.unnes.ac.id/sju/index.php/jils ridho dwiky tastama jils 4 (1) may 2019, 161-166 political issues becomes more comprehensive, deep, and sharper. international issues that are examined using gender lenses are becoming more diverse and broader beyond traditional hi issues that we have known so far. the issue of violence against women in war, women as agents of peace, global migration, issues of trafficking in women (women trafficking), female migrant workers, domestic workers, to women's rights in conventions and protocols of international conventions are some of the genderdimensional international issues that specifically discussed in this book. the book by ani soetjipto on gender and international relations, explains that the study of feminism and international relations has developed more than three decades ago, starting from the holding of an international conference in the late 1980s, and in 1990 under the sponsorship of ford foundation in the us. in the same year there was also a special issue about women in international relations in the millennium journal which marked the beginning of gender and international relations studies. the period was also marked by the study of gender and international relations, with the birth of two books namely by jean bethke elstain, women and war (1987) and cyntihia enloe, banana, beaches and bases: making feminist sense of international relations (1989). furthermore in england, feminist thinkers emerged such as grant and newland with his book entitled gender and international relations (1991), sandra withworth with her book entitled feminist theory and international relations (1994). this book is quite relevant to be used as one of the reading material for international relations students, especially those who are trying to understand gender, feminism and international relations studies, including anyone interested in gender and international relations issues. through this book, we are led to be able to have a broad understanding that the issues in international relations are not only issues and issues related to war, peace, diplomacy, weaponry, trade, but there are still other issues, one of which is gender which can be reviewed from various perspectives. as a reader, this book invites us to understand gender issues extensively by linking them in various studies such as security, international political economy, human rights and international law. for example, how to link gender and security issues in hi, this book provides a variety of writings presented from various writing results that provide readers with a new perspective, especially looking at how women in conflict, such as what is peace from a feminist perspective, include rape of women in conflict . another issue in this book is the link between gender, feminism and international political economy, which discusses how international migration and global inequality, the migration flow of domestic workers and marriage in the study of international political economy. although this book presents interesting issues related to gender and international relations, there are notes that need to be added, there has not been an in-depth discussion of the definitions and concepts of sex, gender and other terms generally needed for beginner readers or readers who have not 163 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 understand gender studies specifically, for example gender stereotypes, gender relations, gender roles, gender discrimination, sex abuse, male domination, etc. eventhough the term is inherent and very important as a basic understanding in gender studies. and if we review the introductory subsection of this book, a discussion about the concept of sex, gender is more specifically devoted to the concept of gender and the theory of feminism in the eyes of international relations. finally, this book also reviews human rights in international relations, takes a case study of the struggle of the rights of women in the continent of africa and the women's convention an opportunity to challenge gender-based injustice in iran. overall this book has provided us as readers to have a more comprehensive understanding of gender issues in international relations and by reading this book it will be very encouraging for students who are exploring non-conventional issues focused on issues of gender and international relations. legal cases of international organizations will not stop until this book. the discussion of case studies in this book can still be used as a reading material and an insight for the reader because there are some that are still in accordance with the times. given a case example in concrete not only mere theory provides a nuance of understanding for the reader to continue to deepen and dig deeper into international law itself. this book also includes various forms of examples of statements of international agreements between countries such as: singapore declaration of 1992, scale of assessments, rule of procedure of the general assembly, resolution 1514 (xv): declaration on the granting of independence to colonial countries and peoples, resolution 1514 (xv): principles which should be a guide for determining whether or not an obligation existence to information of the charter of the united nations, and declaration of principles of international law concerning friendly relations and cooperation among states in accordance with the charter of the united nations. this book explains how to look at international relations in terms of gender as well as feminism, mostly in this book discussing women and their human rights in international relations in the world. the author wrote this book based on his perspective as a subject of women's law to international law. this book uses language that is easily understood and understood by students so it is very helpful in learning activities and very helpful in giving references in making lectures related to international relations. there are a number of advantages and disadvantages in this book, besides the book that is easy to obtain because it is in various bookstores in indonesia, the price is quite affordable in accordance with the objectives of the students in indonesia. this book can also be obtained through online media, with a process that is not so complicated. another advantage possessed by this book is the use of words that are easily understood by students, and also not only in writing, but also with 164 http://journal.unnes.ac.id/sju/index.php/jils ridho dwiky tastama jils 4 (1) may 2019, 161-166 pictorial descriptions that are enough to add to the mood when reading, because if only the writing is in it. the readers will surely fall very easily into boredom, the pictorial information presented by the author is also a color and not blurry description. the picture is quite focused and clear. other advantages, namely, the design of the cover used, the design of the cover used in this book is very elegant and very selling, making the eyes of the viewer immediately curious about what this book contains, although the design is minimalist but it is precisely the design that attracts the attention of people whose age is under 40 years old. the elegance of this design makes this book seem to have a weight for and read and as if only smart people are reading. the combination of colors on the cover design is very fused, the red color is marooned a little and given the transparency of the writings or letters makes this book more beautiful to look at. not only the front cover, the back cover is like that, the back cover not only presents the synopsis or a rough summary of this book, but also presents how the author wrote this book, and also does not miss the author's biography. in addition to the many advantages of this book, this book does not escape from its shortcomings, as a book that is affordable for students, makes the capital issued for this book a little too, because seeing from an economic point of view to get a decent profit, the publisher minimizes the cost of making books, which causes the use of basic materials for this book are materials of low quality, such as for example the paper used. the paper used in this book is very thin and the color is brownish opaque, and if it is returned by hand it will immediately leave the scab on the paper immediately, and it is also very easy to tear. likewise on the quality of the glue used to glued the sides of the book, because the low quality of the glue used causes the thinner paper to be easy to remove from the side, so it must be very careful if you want to read it. maybe not the quality of the glue is low, it could also be the wrong gluing technique or indeed because of the quality of the paper used earlier which makes the glue so hard to stick tightly. books include books that are often used by students to look for references, because they are quite easy to read, in the use of quotes this book uses footnote techniques, in my opinion footnotes are easier to read and found compared to body-notes located at the end of sentences and in the middle of a paragraph it is quite difficult to tell the contents of the paragraph and which one is quoted. if the quote footnote will be immediately placed at the bottom of the sheet, it is quite easy to find a quote, just look for a small number at the end of the sentence and then adjust it to the quote that is located at the bottom. in terms of restructuring, this book in my opinion is quite well structured. this book also notes that the references used in writing this book use reliable references and do not use arbitrary references. in terms of presentation techniques, in my opinion this book is very concerned about how 165 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 this book presents each chapters, with the intention that the majority of readers are students easy to understand from the ground up to arrive at the subject of this book. in the first part of this book it explains the notions of gender itself, gender differences, and to human rights acquired. then it continues to the understanding of its international law, then continues to its international relations, and to the point of discussion. very systematic indeed is the composition of the book, and is very helpful for students in understanding international relations extensively. 166 http://journal.unnes.ac.id/sju/index.php/jils ridho dwiky tastama jils 4 (1) may 2019, 161-166 law quote “silent enim leges inter arma” ― in times of war, the law falls silent marcus tullius cicero source: https://www.goodreads.com/quotes/tag/university jils (journal of indonesian legal studies) volume 6(2) 2021 333 available online at http://journal.unnes.ac.id/sju/index.php/jils research article elimination of sexual violence in feminist legal theorist anis widyawati1a , pujiyono pujiyono2, nur rochaeti3 1 universitas negeri semarang, semarang, indonesia 2,3 universitas diponegoro, semarang indonesia  anis@mail.unnes.ac.id submitted: june 21, 2021 revised: september 9, 2021 accepted: oct 11, 2021 abstract the closeness of women to poverty shows that development still maintains women's subordination and places women in a marginal position. what is the analysis of the feminist legal theorist (flt) in the elimination of sexual violence? feminist legal theory (flt) as one of the streams in philosophy of law is one of the schools of thought that was born from the main philosophy of the paradigm of critical theory feminist legal theory (flt) as one of the streams in the paradigm of critical theory. it is used to analyze the complexity of indonesian legal thoughts amid various world legal thoughts published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 2, november 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils mailto:niktsariadnyani@gmail.com https://orcid.org/0000-0003-4621-3178 https://orcid.org/0000-0001-6807-4450 334 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils the needs of victims, both women, girls, boys, and girls. the bill on the elimination of sexual violence uses the feminist legal theory (flt) as an analysis so that in every norm that is formulated this bill always considers what specific experiences of women, especially victims of sexual violence. legal protection against the elimination of sexual violence is a form of implementation of the second principle of pancasila, namely a just and civilized humanity. keywords: violence; sexual; feminist legal theory http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 335 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract …………………………………………………….…. 333 table of contents ……………………………..…...….…... 335 introduction ………………………………….…………….. 336 elimination of sexual violence in the perspective of the feminist legal theory ………. 338 conclusion …………………………..………………………. 348 references ………………………………………………….… 349 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. how to cite: widyawati, a., pujiyono, p., & rochaeti, n. (2021). elimination of sexual violence in feminist legal theory. jils (journal of indonesian legal studies), 6(2), 333-352. https://doi.org/10.15294/jils.v6i2.48346 http://journal.unnes.ac.id/sju/index.php/jils https://journal.unnes.ac.id/sju/index.php/jils/article/view/48346 336 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction the closeness of women to poverty shows that development still maintains women's subordination and places women in a marginal position1. poor women are not only women who are not well off financially, but also because they are not able to participate in development matters, are unable to access proper education, have difficulty accessing reproductive health, etc. which make women increasingly cornered. the poverty of women then leads to the vulnerability of experiencing domestic violence, being easily polygamous, divorced, cornered by society, and increasingly disrespected for their rights by many parties. the marginalization of women is not only from development but also from their culture. social values adhered to by certain cultures and maintained by certain societies often place women at a disadvantage. these social values contain the unequal division of roles between men and women which is formed and sustained by the patriarchal society and culture. for example, many women do household chores that do not generate wages such as caring for children, preparing food, farming for their own needs, and collecting firewood and water 2. because most of their time is spent working for household interests, women do not have much time to participate in public spaces and even women are vulnerable to becoming victims of sexual violence. based on the data collected, the most prominent types of violence against women, the same as in the previous year, were kdrt (domestic violence) / rp (personal sphere) which reached 71% (9,637). the private sphere was most frequently reported and not a 1 chusnul mar’iyah, demokrasi dan pembangunan untuk siapa: dapatkan perempuan bertahan di desa atau menjadi buruh migran di kota, 38 j. ilmu pemerintah. pencerahan untuk memajukan pemerintah. (2012). 2 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 337 available online at http://journal.unnes.ac.id/sju/index.php/jils few of them experienced sexual violence. the second position is violence against women in the community / public domain with a percentage of 28% (3,915) and the last is violence against women in the realm of the state with a percentage of 0.1% (16). in the domain about residential viciousness / rp, the vast majority of conspicuous viciousness might have been physical roughness 3,927 situations (41%), positioned in took after by sexual viciousness with 2,988 instances (31%), mental 1,658 (17%), and investment brutality 1,064 situations (11%). in the public and community sphere, violence against women has recorded 3,915 cases. 64% of violence against women in the public or community sphere is sexual violence, namely sexual harassment (394), rape (762), sexual abuse (1,136), and intercourse in 156 cases 3. to examine the elimination of sexual violence, it is appropriate to use the paradigm of critical theory 4. one of the streams in the paradigm of critical theory et. al. namely feminist legal theorist (flt). feminist legitimate scholar (flt) alternately feminist lawful hypothesis seemed for that main period in the 1970s, alongside those improvements from claiming basic lawful investigations (cls) likewise a school of thought that endeavored on getting through that establishment of a theory against ladies and the separation that ladies got starting with the law. critical legal studies (cls) with its thinker, roberto unger, states that law is not an orderly system but is 3 komisi nasional perempuan, perempuan dalam himpitan pandemi: lonjakan kekerasan seksual, kekerasan siber, perkawinan anak, dan keterbatasan penanganan di tengah covid-19 (2021). 4 boyee alvhan clifford, erlyn indiarti & r.b sularto, telaah paradigmatik tentang penerapan diskresi pada pertimbangan dan putusan hakim dalam perkara pidana dengan terdakwa labora sitorus, 5 diponegoro law rev. 1–16 (2016). http://journal.unnes.ac.id/sju/index.php/jils 338 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils something irregular, unpredictable and that law is strongly influenced by the perceptions of observers in interpreting the law 5. based on the background above, this paper has focused on the study of what is the analysis of the feminist legal theorist (flt) in the elimination of sexual violence? the normative research method was applied in this study. secondary data is obtained via library studies in the form of primary legal materials (legislation) and secondary legal materials (doctrines)6. furthermore, auxiliary legitimate materials alternately doctrines. to reply to inquiries in the plan of the problem, an administrative what's more doctrinal approach will be utilized. the information introduced is qualitative, also will be exhibited for a spellbinding system for analytics. elimination of sexual violence in the perspective of the feminist legal theory before further examining the elimination of sexual violence through the feminist legal theorist (flt), the author must describe the paradigm used as a tool for analysis in this paper. of the number masters who offer comprehension also standard classification, and authors have a tendency will embrace the assessment about guba what's more lincoln, which as stated by erlyn indarti will be a greater amount far-reaching in those same runs through systematic, compact, also normal. five principal paradigms, aggregated from lincoln, 5 roberto mangabeira unger, the critical legal studies movement (2015). 6 c. stutz & s sachs, facing the normative challenges: the potential of reflexive historical research, 5 sage journals 1–25 (2016). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 339 available online at http://journal.unnes.ac.id/sju/index.php/jils lynham, also guba, 2011, incorporate positivism, post-positivism, basic principle, constructivism, furthermore participatory 7. guba and lincoln, who are more disposed towards a worldwide comprehension of the worldview, recognize standards dependent on their responses to 3 (three) 'essential inquiries' disturbing: a. the structure and nature of the real world, along with what can be thought about it (known as the 'ontological' question); b. the nature of the relationship or connection between an individual or gathering of individuals and the climate or all that is outside him/herself, including what can be thought about this (alluded to as 'epistemological' questions, which incorporates 'axiological' questions); and c. how people or gatherings of individuals (counting specialists, obviously) find the solutions to what they need to know (known as methodological inquiries). feminist legal theory (flt) as one of the streams in philosophy of law is one of the schools of thought that was born from the main philosophy of the paradigm of critical theory. in light of the comprehension of the worldview as indicated by guba and lincoln, the nature, nature, and strategy for the feminist legal theory (flt) are by the worldview working of critical theory, both ontology, epistemology, and methodology. 8 in this paper the focus of writing is related to the analysis of the critical theory et.al paradigm, which includes questions 9: 7 erlyn indiarti, pancasila dan pembaharuan hukum: suatu telaah paradigmatik, in national seminar mih undip 1–13 (2019). 8 aditya yuli sulistyawan, feminist legal theory dalam telaah paradigma: suatu pemetaan filsafat hukum, 47 masal. huk. 56–62 (2018). 9 erlyn indiarti, filsafat ilmu: suatu kajian paradigmatik (2019). http://journal.unnes.ac.id/sju/index.php/jils 340 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils a. ontological (the essence of science) historical realism, namely virtual reality, which is formed by political, social, economic, cultural, gender values, ethnic and then crystallized over time; b. epistemology (the relation between the researcher-science) transactional/subjectivist, namely the researcher and related science interactively, the findings are mediated by values; c. dialectical/dialectical methodology (the study of science), namely the dialectical dialect between the researcher and science, the transformation of indifference and misunderstanding into the awareness that historical structures can be changed through real action. feminist legal theory (flt) as one of the streams in basic hypothesis et.al can't be isolated from the different existing women's activist schools. well before the introduction of the feminist legal theory (flt), which explicitly centers around legitimate articles, woman's rights as a way of thinking have arisen since the eighteenth century 10. there are several streams of feminism, namely liberal, radical, socialist, marxist, eco-feminist, islamic feminist, anarchofeminist, and afro-american feminism to third-world feminism, each of which sees the source of women's oppression differently from the others. thus, feminism exists and grows in every community, region, race, religion, and country, although it may be using different terms. broadly speaking, the feminist legal theory (flt) provides an overview of feminist theory in law as conveyed by niken savitri that the feminist legal theory (flt) which led to a run of the mill women's activist investigation strategy in law is generally used to examine expansive issues in different fields of law. his investigations incorporate censuring law from a women's activist perspective as a significant report. since the feminist legal theory (flt) can't be 10 sulistyawan, supra note 8. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 341 available online at http://journal.unnes.ac.id/sju/index.php/jils isolated from the different existing schools, there is no consistency in the technique. in any case, there are in any event five things that can be underlined from the variety of feminist legal theory (flt) which is designated "think like women's activist", including ladies' encounters, implied sex predisposition, servitude/twofold bonds, and the difficulty of contrasts, multiplication of a male mastery model, and opening up ladies' selection 11. the essence of knowledge in feminism is an idea / thought to fight the injustices that befall women 12. people who fight for it are called feminists. thus, rejecting feminism is tantamount to agreeing that injustice against women continues 13. especially about muslims, the struggle of the prophet muhammad saw to elevate the dignity of women is a struggle for feminism. prophet muhammad saw is a true feminist. he called on the public to eliminate violence against women; giving inheritance rights to women where previously women were the inheritance itself; limiting polygamy which previously could be done without restriction, abolishing forced marriage to women by requiring the consent of the woman to marry; and abolish slavery. what the prophet saw did was the teachings of islam that he had spread since the 7th century in the arabian peninsula. therefore, it is very wrong if there are parties who reject feminism and consider it from the west and oppose islam and feminism. feminism is not single-dimensional, it varies depending on how one views the source of women's oppression 14. the notion of presenting the draft law on the elimination of sexual violence was a requirement based on facts and statistics on 11 indiarti, supra note 7. 12 erlyn indarti, progressive law revealed: a legal philosophical overview, 03 diponegoro law rev. 28–42 (2018). 13 komisi nasional perempuan, supra note 3. 14 nuril hidayati, teori feminisme: sejarah, perkembangan dan relevansinya dengan kajian keislaman kontemporer, 14 j. harkat 21–29 (2018). http://journal.unnes.ac.id/sju/index.php/jils 342 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils sexual violence that occurred in indonesia, which were compiled in komnas perempuan's yearly record of violence against women (catahu) since 2001. sexual violence is visible and occurs in indonesia's homeland, encouraging the population, particularly victims of sexual assault, to demand that their rights be protected 15. the occurrence of sexual violence shows that the human value of the perpetrator of sexual violence as a human being is reduced. the perpetrator also attacked the dignity of the victim's humanity. to restore human values that have been violated as a result of the perpetrator's actions, the state must take fair and civilized actions, both to the victim, as well as to the perpetrator and society. such actions can only be taken if there is clear legal protection to deal with sexual violence. at this time, there is no legal protection capable of providing justice and restoration for victims, even though efforts to restore human values that have been violated can no longer be postponed. in 2000, mrs. shinta nuriyah also initiated what she called pancasila feminism. this idea is to underline that feminism is also part of the values of the indonesian nation and does not conflict with indonesian culture, namely, the feminism that rests on the values of god, humanity, within the framework of the republic of indonesia, promotes the democratic process and is aimed at achieving social justice for all indonesian people 16. to regard feminism as a school that rejects family life is a sign of laziness to read, even though laziness in reading is the entrance to human fooling. in contrast to the context of the function of feminist legal theory (flt) in scientific studies, feminism as a value is not new in indonesia. tracing the cultural history of the archipelago shows that some women fighters in 15 siti dana retnani, feminisme dalam perkembangan aliran pemikiran dan hukum di indonesia, 1 j. ilmu huk. aleth. 95–109 (2017). 16 komisi nasional perempuan, supra note 3. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 343 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesia have promoted women's rights for equality 17. for example, raden ajeng kartini (central java) and dewi sartika (west java) have promoted the right to education for women. this is in line with the thought of liberal feminism which at that time has been developing in other parts of the world. demands for improving the condition of women then do not stop at equal access to education. in the history of the feminist movement, there is an “anti-male” campaign that is suspected of being an attempt by capitalism and patriarchy to hit back every women's movement against injustice. capitalism and patriarchy easily label anti-family, hostile to men, and anti-marriage to anyone who fights against injustice.18 the meaning of "feminist" is then labeled with a bad connotation so that when capitalism continues to exploit natural resources, society is preoccupied with accusations and hatred of feminists and feminism 19. the existence of a feminist legal theory (flt) which is the breaker of inequality caused by law which has been argued as the bearer of justice for all, is neutral, objective, and equal to anyone, including men and women. feminists believe that law is a reflection of political philosophy. dominant one 20. amid patriarchy, the law is only seen from the point of view of men because it is men who write the law and enter their interests. this is emphasized by anthony synott who said “men have justified their hegemony, and the male-female inequality, in several ways and every discipline 21. as part of the academic research method, feminist legal theory (flt) analysis knife as one of the streams in the paradigm of critical theory et.al. it is 17 hidayati, supra note 14. 18 indah dwiprigitaningtias & yuniar rahmatiar, perempuan dan kekuasaan dihubungkan dengan feminist legal theory, 5 justisi j. ilmu huk. 54–68 (2020). 19 komisi nasional perempuan, supra note 3. 20 n savitri, ham perempuan kritik teori hukum feminis terhadap kuhp (2008). 21 a synott, tubuh sosial: simbolisme diri dan masyarakat (2003). http://journal.unnes.ac.id/sju/index.php/jils 344 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils used to analyze the complexity of the needs of victims, both women, girls, boys, and girls. so, the assumption of conflict between men and women due to feminist legal theory (flt) is an unfounded accusation. the establishment of norms that regulate the management, protection, and recovery of victims that were not previously regulated in legislative laws is the true application of feminist legal theory (flt) ideals as defined in the bill on the elimination of sexual violence. there is no singular formulation of norms in this bill that addresses men and women as opposing parties. the proposed law on the elimination of sexual violence once again prioritizes victims, including women, girls, boys, and men. the law is "male sex," according to feminist legal theory because lawmakers are governed by men. so, like a critical law school, legal discourse then forgets the voices of the marginalized, which in this context are women. therefore, legal studies as per feminist legal theory (flt) should be carried out to posit women's experiences. as a result, it is reasonable to conclude that this way of thought positions itself to side with women to break through the legal establishment, which claims to be neutral but discriminates and oppresses women. feminist legal theory (flt) is a school of thought with a subjective epistemology in this context. to dismantle the hegemony of men's thoughts in the domination of a patriarchal world, feminist legal theory (flt), which is part of a feminist study, based the study on women's experiences. women's experiences can be said to be particular experiences because not all women are the same, so this is subjective 22. the subjectivity that governs the understanding of feminist legal theory (flt) is the keyword that may be highlighted to discover the paradigm that houses the concept of feminist legal 22 l. g lapian, disiplin hukum yang mewujudkan kesetaraan dan keadilan gender (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 345 available online at http://journal.unnes.ac.id/sju/index.php/jils theory (flt). furthermore, feminist legal theory (flt) is a school of thought that advocates for women's rights to protect, empower, and emancipate them 23. here it can be seen that this alien is subjective, not objective as the law promoted by legal positivism. the idea of feminism is to create justice, both social justice and family justice. to achieve this, education is needed in the community and the family so that each member does not commit violence against others, including sexual violence. the occurrence of domestic violence experienced by women and children shows the reality of the existence of injustice in the family, namely from the dominant person to those with lower relations. likewise with sexual violence committed by family members. prevention and handling of sexual violence at the family level are not contradictory to feminism because feminism teaches everyone to respect the rights of others, not to commit violence against others, to have control over oneself to dare to fight sexual violence, to speak up for reporting the violence they have experienced, and rejecting sexual violence either through words or deeds, including in the family environment. 24 family resilience is envisioned as an ideal bulwark for every social problem in society, including sexual violence. the perpetrator of sexual violence is within the family itself, whether it's father, uncle, grandfather, or sister. the concept of family resilience cannot provide an answer to where victims should seek help when they become victims of sexual violence from their own families. an example, where were the bearers of family resilience when the rape case in lampung (2018) was exposed by his father and 23 budi hermawan bangun, hak perempuan dan kesetaraan gender dalam perspektif filsafat hukum, 15 pandecta res. law j. 74–82 (2020). 24 rima vien permata hartanto, adi sulistiyono & isharyanto isharyanto, feminist perspective towards the legal theory on fisher-women’s legal entity, 13 fiat justisiajurnal ilmu huk. 345–360 (2019). http://journal.unnes.ac.id/sju/index.php/jils 346 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils uncle? or the case in jambi where the perpetrator was a sibling until the victim became pregnant and aborted her womb? legal protection for victims of sexual violence will strengthen the existence of family institutions to become a safe space for everyone in it to avoid sexual violence, as well as provide a space for protection for people who experience sexual violence from their own families. epistemologically, the use of feminist legal theory (flt) does not at all create conflict between men and women 25. feminist legal theory (flt) is used in the academic paper of the bill on the elimination of sexual violence as an analytical tool to understand the diversity of experiences of women victims when dealing with sexual violence and the law. the victims have different backgrounds and responses to the events experienced, so it is not appropriate to homogenize one victim with another. for example, when women experience one type of sexual violence crime, some women scream and dare to fight back and report to the police, but some are silent 26. even so, in general, women victims were unable to defend themselves or report the perpetrators for fear of being stigmatized and blamed again by various parties for the cases that happened to them 27. the analysis knife helps to find that in general, the victim is powerless over the perpetrator and for the sexual violence perpetrated by the perpetrator. besides, there is no legal protection that facilitates victims of sexual violence to carry out routine checks whether or not they have aids. if it is known too late, the handling will also be too late. the bill on the elimination of sexual violence will overcome this obstacle, by 25 indiarti, supra note 9. 26 erlyn indiarti, profesionalisme pengemban fungsi utama kepolisian dalam penegakan hukum di polda jawa tengah, 43 j. masal. huk. undip 348–355 (2016). 27 habib shulton asnawi, kritik teori hukum feminis terhadap uu nomor 1 tahun 1974 tentang perkawinan, suatu upaya dalam menegakkan keadilan ham kaum perempuan, 4 al-ahwal 117–130 (2011). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 347 available online at http://journal.unnes.ac.id/sju/index.php/jils setting norms that facilitate sexual violence victims to obtain periodic health check services 28. those who reject the draft law on sexual violence seem to be wrong in understanding what feminist legal theory (flt) and feminism are, by confusing their definitions with each other so that the conclusions drawn are also wrong. as for the methodology 29, we can describe the efforts of the community movement, namely the national commission on violence against women, bem ui joined the civil society movement (gemas) alliance, the interfaith movement of west java (geulis), the solo community alliance movement, the program network. the pro-legislation women's (jkp3) staged a protest because the need to protect the right to the elimination of sexual violence is a need to address problems that exist in indonesia, rather than those entrusted to it from the west or the east, and it demands that the proposed law on the eradication of sexual abuse be passed immediately. komnas perempuan has taken many steps to ensure that the proposed law on the eradication of sexual abuse is passed as soon as possible, namely: 1. cooperating with the government, which already has a mechanism to build and process data from all provinces in indonesia, namely the religious courts (badilag). badilag has complete data on divorce rates and has categorized the causes of divorce based on the marriage law and the compilation of islamic laws. this data helps komnas perempuan find causes based on gender-based violence in the realm of marriage or household. 2. send a questionnaire form that needs to be filled out by institutions that deal with women victims of violence to the government and civil society organizations. the questionnaire form prepared by komnas perempuan contains the identification of cases of genderbased violence. the willingness of the government and civil society 28 wirasandi, wanita dalam pendekatan feminisisme, 7 j. ilm. rinjani 47–58 (2019). 29 indiarti, supra note 26. http://journal.unnes.ac.id/sju/index.php/jils 348 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils organizations helps komnas perempuan in presenting data on findings of violence against women. 3. processing data on complaints that come directly to komnas perempuan from the complaints and references unit as well as from email. 4. presenting additional data from partners based on vulnerable groups of women, namely violence against sexual minority communities, women with disabilities, women with hiv, and defenders of human rights for women. conclusion feminist legal theory (flt) as one of the streams in basic hypothesis can't be isolated from the different existing women's activist schools. feminist legal theory (flt) criticizes law as a source of subordination to women. feminist legal theory (flt) in essence emphasizes that the formation of laws is not gender-neutral, biased, or even promotes male supremacy if the formation of laws fails to consider women's experiences. the bill on the elimination of sexual violence uses the feminist legal theory (flt) as an analysis so that in every norm that is formulated this bill always considers what specific experiences of women, especially victims of sexual violence. the voices of victims who are silenced, tend to be stigmatized and blamed, and fail to get recovery and justice are the realities of the experiences of women victims of sexual violence that are of concern in this bill to find a solution and solution. therefore, legal protection is needed as a form of implementation of the second principle of pancasila, namely just and civilized humanity. the need for protection against sexual violence has prompted various political parties to rally support for the ratification on the eradication of sexual http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 349 available online at http://journal.unnes.ac.id/sju/index.php/jils abuse. in the end, hating feminism and also hating efforts to eliminate sexual violence will only hamper victims of sexual violence from their rights to truth, justice, and restoration. thanks to feminism, women in various countries can enjoy their human rights as human beings. women can go to school, work, enjoy welfare, think and have an opinion, be chosen and choose, and even enjoy everyday life in the household based on their conscious choices thanks to the work of feminism. so, it seems paradoxical, if there are parties who reject the bill on the elimination of sexual violence because this bill adopts feminism, while those who reject it can express their opinions, conduct discussions, analyze, even demonstrate, also because of the work of feminism. references asnawi, h. s. 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(2018). teori feminisme: sejarah, perkembangan dan http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/pandecta.v15i1.23895 https://ejournal3.undip.ac.id/index.php/dlr/article/view/11313 350 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils relevansinya dengan kajian keislaman kontemporer. jurnal harkat, 14(1), 21–29. https://doi.org/10.15408/harkat.v14i1.10403 dwiprigitaningtias, i., & rahmatiar, y. (2020). perempuan dan kekuasaan dihubungkan dengan feminist legal theory. justisi jurnal ilmu hukum, 5(1), 54–68. https://doi.org/10.36805/jjih.v5i1.1270 indarti, e. (2018). progressive law revealed: a legal philosophical overview. diponegoro law review, 3(1), 28–42. https://doi.org/10.14710/dilrev.3.1.2018.28-42 indiarti, e. (2016). profesionalisme pengemban fungsi utama kepolisian dalam penegakan hukum di polda jawa tengah. jurnal masalah-masalah hukum, 43(3), 348–355. http://dx.doi.org/10.14710/mmh.43.3.2014.348-355 indiarti, e. (2019a). filsafat ilmu: suatu kajian paradigmatik. semarang: badan penerbit undip. indiarti, e. (2019b). pancasila dan pembaharuan hukum: suatu telaah paradigmatik. national seminar mih undip, 1–13. komisi nasional perempuan. (2021). perempuan dalam himpitan pandemi: lonjakan kekerasan seksual, kekerasan siber, perkawinan anak, dan keterbatasan penanganan di tengah covid-19. jakarta: komnas perempuan. retrieved from https://komnasperempuan.go.id/uploadedfiles/1466.161493364 5.pdf lapian, l. g. (2019). disiplin hukum yang mewujudkan kesetaraan dan keadilan gender. jakarta: yayasan obor indonesia. mar’iyah, c. 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(2016). facing the normative challenges: the potential of reflexive historical research. sage journals, 5(2), 1– 25. https://journals.sagepub.com/doi/10.1177/0007650316681989 sulistyawan, a. y. (2018). feminist legal theory dalam telaah paradigma: suatu pemetaan filsafat hukum. masalah-masalah hukum, 47(1), 56–62. http://dx.doi.org/10.14710/mmh.47.1.2018.56-62 synott, a. (2003). tubuh sosial: simbolisme diri dan masyarakat. jakarta: jalasutra. unger, r. m. (2015). the critical legal studies movement. massachusetts: harvard university press. wirasandi. (2019). wanita dalam pendekatan feminisisme. journal ilmiah rinjani, 7(2), 47–58. https://doi.org/10.12345/jir.v7i2.122 http://journal.unnes.ac.id/sju/index.php/jils http://dx.doi.org/10.14710/mmh.47.1.2018.56-62 https://doi.org/10.12345/jir.v7i2.122 352 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils you're not a victim for sharing your story. you are a survivor setting the world on fire with your truth. and you never know who needs your light, your warmth, and raging courage. alex elle http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 315 available online at http://journal.unnes.ac.id/sju/index.php/jils review article controversial issues on the making of notarial deed containing chained promise (beding berantai) with the freedom of contract principle david tan faculty of law, universitas internasional batam  davidtancyz@gmail.com submitted: june 28, 2019 revised: august 28, 2019 accepted: november 3, 2019 abstract in carrying out the duties as a civil law notary, it is possible that they find himself/herself composing a deed containing chained promise (beding berantai). departing from this background, it can be drawn that the formulation of the problem, among others, how is the position of chained promise (beding) in indonesian civil law order and how is the role of civil law notary balancing legal protection for the parties in making deed containing chained promise (beding). another controversial issue is the chained beding faced with the freedom of contract principle. the purpose of this research is to understand the position of chained promise (beding) in indonesian civil law order and the role of civil law notary balancing legal protection for the parties in making deed containing chained promise (beding). to answer the questions, a juridical normative approach is conducted. to obtain legal materials needed, it is then carried out by searching, collecting and reviewing library materials, legislation, research results, scientific works and other written documents. data obtained from the result of study will then be analyzed qualitatively. from the results of study, it is known that chained promise (beding berantai) is an instrument or a way to transfer rights/obligations arising from an agreement to the party that obtains rights based on a special title. recommendations given to the stakeholders are, namely civil law notary themselves in carrying out their duties and positions so that he/she could pay more attention to the points represented in his/her product of authentic (notarial) deed. keywords: beding berantai; chained promise; notarial deed; freedom of contract principle nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 4 issue 2, november 2019 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils mailto:davidtancyz@gmail.com 316 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 315 table of contents ………………………………...………….….. 316 introduction ………………………………………………………. 316 analysis of chained promise (beding berantai) …... 320 i. concept of legal political paradigm in contract drafting ………………………..….……….……. 321 ii. position of chained promise (beding berantai) in the indonesian civil law order …………………... 322 the role of civil law notary to balance legal protection for the parties in the making of authentic deeds that contain chained promise (beding berantai) …………………………………………………. 328 conclusion ……………………………………………………..…… 334 references …………………………………………………………… 335 copyright © 2019 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. how to cite: tan, d. (2019). controversial issues on the making of notarial deed containing chained promise (beding berantai) on the freedom of contract principle. jils (journal of indonesian legal studies), 4(2), 315-338. https://doi.org/10.15294/jils.v4i2.31091 introduction civil relations between someone (naturlijkpersoon) or legal entity (rechtspersoon) with other legal subjects is an interaction that cannot be denied its existance. as social beings (zoon politicon) an interaction will often lead to new legal relations between legal subjects. this legal relationship arises because of urgent needs, especially those related to socio-economics. to prevent the legal relationship so that is does not become conflictual between legal subjects, then in the practice the parties http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 317 available online at http://journal.unnes.ac.id/sju/index.php/jils will pour the points of agreements reached in the form of provisions and conditions specifically regulated in the agreement. not infrequently this agreement is made into a notarial deed before a civil law notary1 as a public official authorized to make authentic deeds, one or another so that the authentic deeds has perfect verification power as evidence2 (prastomo 2017). as a party deed (akta partij), the agreement made before the civil law notary by the parties is a description of what is explained or desired by the parties facing the notary. so it does not rule out the possibility that the contents of the deed made contains promises (beding berantai) from which one party (the pledge) to the other party (the recipient of pledge) which is actually desired to be implemented chainly and so on. the term is known as chained promise or beding berantai. to protect the rights of each party in the agreement, the arrangement regarding agreements containing chain promises or beding berantai is important to be studied. as an example of civil relations, it is understood that the regulation regarding civil affairs regulated in the indonesian code of civil law (hereinafter referred to as “indonesian civil code”) is formed with a background of legal philosophy based on the principles of individualism with different abstract and analytical mindsets with legal ideas (rechtsidee) of pancasila as the indonesian legal philosophy. pancasila which is based on helping mindset, mutual cooperation with a family bond concrete mindset (latumeten 2017). the supreme court of the republic of indonesia has put forward a flow in interpreting colonial law products, namely juridical idealism which teaches that in processing a 1 the english translation of notary position in indonesia is civil law notary (not notary public). there are many misconception for the english translation of indonesian notary position as a notary public. just for the knowledge in history of law in the field of notary, that the beginning of the notariat institution was developed in the northern italy, in the 13th century being brought to france, where the notariat gained its peak of its development. on 6 october 1791, france issued legislation in the field of notariat. the law of 6 october 1791 was then amended with the 25 ventôse an xi on 16 march 1803 where until now, the 25 ventôse an xi has undergone several changes. france colonizes the netherlands and carries out the principle of concordation with the netherlands in connection with the laws of that country. under the french colony, the dutch accepted the results of the efforts of the french state by implementing french legislation in the netherlands. indonesia also implemented the dutch laws from the netherlands through principle of concordation during the times of east indies (hindia belanda). thus the civil law legal system (continental europe legal system) know and recognizes the concept of authentic instruments (indonesian translation: dokumen autentik), hence the concept of authentic instruments is based on the civil law concept of preventive justice. the common law legal system (anglo saxon) don’t recognizes the concept of authentic instruments. for that the notary position in indonesia if translated in english is civil law notary and not notary public (lantanea 2016). 2 the perfect power of evidence means that those deed has to be deemed right, unless if it can be proved otherwise in front of the court of justice ruling. http://journal.unnes.ac.id/sju/index.php/jils 318 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils statutory provision, it is not permissable to hold on only to what is from the law, as taught in juridical positivism, but must also pay attention to the soul3 that controls the legal system that enforces the law, namely pancasila as a legal philosophy which is contained in the preamble of the 1945 constitution of the republic of indonesia (koesnoe 1996). an example of chained promise (beding berantai) practiced in the reality such as regarding information with the example clause of: in the event of actual conflict of interest arises between trustees and a third party, the parties will immediately inform all other parties. this example clause is taken from research paper by stefanos mouzas and michael furmston, as an example given from clause which is generally seen in an umbrella agreement. the clause although not specified, is naturally interpreted as a chained promise (beding berantai), namely not only that the said conflict of interest arises between trustees and a third party, but also if another party undertake the position of the trustees, he/she/they must immediately inform all other parties regarding the conflict of interest. the research paper by stefanos mouzas and michael furmston however mainly focuses on the paradigm shift from ordinary contract to umbrella agreement; why we should consider umbrella agreement; distinguishing an umbrella agreements; comparison of umbrella agreements with pre-contractual agreement, open trade agreements and general terms and conditions; and legal enforcement of an umbrella agreements (stefanos mouzas and michael furmston 2008). another empirical example of agreement made by the parties that essentially contains chained promise (beding berantai) from the observation of the writer is an agreement in the name of land allocation agreement made by batam indonesia free zone authority (bifza) and the recipient of land allocation. it the agreement it is then agreed that if the land allocation period has expired, the land allocation recipient promise to hand over the allocated land back to bifza in a vacant position. the agreement also includes the giving of power of attorney from the land allocation recipient which gives authority to bifza to vacant the land if the land allocation recipient fails to do so. from the substance and formulation of the agreement, we know that bifza intends that such promise must be 3 the supreme court’s opinion that the laws from the colonial period in a concrete situation are set aside from the scope of the national legal system that is pulled out from rechtsidee by the unwritten law. in case of the articles of the colonial law however its interpretation cannot find its place in rechtsidee, in that case the articles of that colonial law are illegal in the national legal system. the real example regarding this is the indonesian code of civil law which is formed with the legal philosophical background based on the principle of individualism with abstract and analytical mindsets, which is different from the rechtsidee (ideals of the law) of pancasila as the legal philosophy of the indonesian nation, based on mutual help, cooperation, kinship ties with a concrete mindset. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 319 available online at http://journal.unnes.ac.id/sju/index.php/jils treated everlasting even though the allocated land has been sold to another party by the land allocation recipient. but the agreement fails to stipulate such promise to be recognized as a chained promise (beding berantai). furthermore if the object of land allocation agreement exceed 1.000 m2 the agreement must be signed before an appointed civil law notary (vide article 21 paragraph (3) of the regulation of the head of batam indonesia free zone authority number 10 of 2017 regarding management of land administration). according to the searches conducted by the writer, there are only a few handful of writing, research, study and article that specifically discuss about the position of chain promise (beding berantai) in the indonesian civil law order and what is the role of civil law notary in balancing legal protection for the parties in making deed containing chain promise (beding berantai). therefore the topic raised by the writer in this article can be classified as a topic that has an element of novelty and non-obvious. this novelty is a guarantee that the article made is an original work (wibisana 2019). based on the description of the background, there are two problems that will be examined. the formulation of the problem includes the following: how is the the position of chain promise (beding berantai) in the indonesian civil law order and what is the role of civil law notary in balancing legal protection for the parties in making deed containing chain promise (beding berantai)? research done to answer the problem is done by a juridical normative approach, namely research on legal principles (including legal notions, legal provisions of rules, norms, doctrines, jurisprudence and relevant official material). as a normative study, the focus of research to answer the problem lies in library research (secondary data in the form of primary legal materials, secondary legal materials and tertiary legal materials). from the results of the analysis it is expected that the results of descriptive research can be obtained which will provide an overview of the use of chain beding in agreements made before a civil law notary. to furthermore enhance this research, the writer will elaborate more on the laws related to the topic raised in this research. the said laws are as follows, including but not limited to the indonesian civil code, namely the provision as stipulated in book three regarding engagement and the law of the republic of indonesia number 2 of 2014 regarding amendments to law of the republic of indonesia number 30 of 2004 regarding notary position, especially the provision of article 15 and article 16 of the said law. the supporting theory used in this research is the responsive law theory by philippe nonet and philip selznick. according to this theory a http://journal.unnes.ac.id/sju/index.php/jils 320 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils good law should give out more not just merely a law procedure. the law has to be competent and fair. it has to be able to identify the needs of the public and has the commitment to achieving substantive justice. responsive law is the tradition of realist (legal realism) and sociologist (sociological jurisprudence) which has one main theme, which is to open the barriers of knowledge. responsive law seeks to overcome the dilemma between integrity and openness, a responsive institution strongly maintains the things that are essential to its integrity while still paying attention or taking into account the existance of new forces in its environment. to achieve this, responsive law reinforces the ways in which openness and integrity can support each other despite the conflict between the two. the hallmark of responsive law it to look for the implied values contained in the regulations and policies. this flow of law also says that “the ideals” of responsive law is legality. the purpose of responsive law is competency, with the rules which is the subordinate of principles, main consideration from the purpose (purpose oriented), allowed use of discretion widely but according to the purpose and participation aspect is widened with the integration of legal and social advocation (hastuti 2008). in this research, the responsive law theory by philippe nonet and philip selznick will be used to analyze the second problem regarding the role of civil law notary in balancing legal protection for the parties in making deed containing chain promise (beding berantai). analysis of chained promise (beding berantai) chained beding is an instrument or way to transfer rights/obligations arising from an agreement to parties who obtain rights based on special titles. rights and obligations based on the beding will not automatically switch to the next owner. here the beding must be promised again by the next sellers and buyers. chained beding has one diadvantage. based on the nature beding is considered as individual rights, thus it can only be sued by certain parties. as a result if the chain beding forgot to be promised, there was a default. chain beding in nature is individual rights and not material rights. therefore, although beding is listed on the sale and purchase deed, the beding has to be promised again each time. the buyer (in good faith) who is not aware of the beding is deemed not bound by it (budiono 2014). chained beding in one hand is very complicated to be practised, but on the other hand, it is the only way to transfer rights/obligations arising http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 321 available online at http://journal.unnes.ac.id/sju/index.php/jils from an agreement to parties who obtain rights based on special titles. therefore it is vital as such practice is still being used until now and the parties did not realize it to bring such legal responsibility. even for the civil law notary, many of them also did not realize the importance for the stipulation of a dedicated article solely for the purpose of regulation regarding the promising of a chained beding to the next party if there is a transfer of rights and/or changes of the party in the deed. i. concept of legal political paradigm in contract drafting construction of norms in paradigmatic perspectives, commonly known as a philosophycal foundation (philosophy of paradigm), it means the position of pancasila as the basis of the country, especially in the context of implementing the law-forming process that all pancasila values must be the main basis and/or reference source, to be further derived into legal principle, norm and the articles on a statutory regulations that will be formed (idham 2010). furthermore, rodiyah (2006) highlighted that indonesia is a state of law, meaning that the state of indonesia has a strong juridical foundation in its role of carrying out development. the state must be build from two concepts, a democracy based on godhead, humanity, unity, people and justice (arifin 2017). the position of pancasila as the basis of the state, the views of life and soul and the personality of the indonesian nation and state as intended are very strategic and determine whether the law is valid or not, stipulated and promulgated as regeling to bind the public. if in reality pancasila as the philosophy of paradigm is not followed but even deviate, then the worst risk is that the product of the law formed is declared null and void. in line with this, in parallel the product of the law will immediately get resistance from the people, and/or at least a judicial review will be carried out through a judicial institution in this case the claim is submitted to the constitutional court. besides the things mentioned above, a law (agreement) must also reflect the fulfillment of three basic principles of the rule of law, which are: supreme of law, equity before the law dan due process of law. three basic principles of the rule of law if implemented holistically in operational terms will be able to reflect the general characteristic of a legal state that at least fulfills the three characteristic, namely: guarantee of the protection of human rights, the guarantee of judicial power or an independent judiciary and guarantee of the law enforcement of the principles of legality. http://journal.unnes.ac.id/sju/index.php/jils 322 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils ii. position of chained promise (beding berantai) in the indonesian civil law order based on the indonesian constitution’s transitional provisions before it was amended, it is said that the existing and still valid rules can still be applied as long as the new rules have not been established. so regarding the applicable contract law in indonesia, it still takes the existing provisions, namely based on the burgerlijke wetboek as a product of civil law inherited from the reign of the dutch east indies (gilalo 2015). an agreement essentially is the meeting of the mind/mutual consent of the parties to achieve an agreed goal in order to provide maximum benefit to the parties. an agreement like a legal document deserves to fulfill at least three elements as stated by gustav radbruch, namely justice, expediency and legal certainty (priyono 2018). the third book from burgerlijk wetboek adheres to an open system meaning that there is freedom in making agreements (contracts) with anyone thus determining its conditions, ferformance and made both in written form or verbally. in general, agreements that can be said to be valid have fulfilled the conditions, namely: (a) there is an agreement, (b) capacity, (c) certain things and (d) a lawful thing. fulfillment of these four conditions, the agreement becomes valid and binding for them who is in the agreement (gilalo 2015). in the civil code agreement is an essential factor that animates the formation of contract/agreements. agreements are usually expressed with the words “agree” or “ijab-kabul” (in islamic law), accompanied by affixing signatures as proof of approval for all matters listed in the contract/agreement (civil code) (ratna sari 2017). this first condition can be broken if there is a force (dwang), oversight (dwaling), fraud (bedrog) or undue influence (misbruik van omstandigheden) (tan 2018). according to the doctrine of undue influence, the promisor has a right to rescind (set-aside) a contract if the promisee took advantage of the relationship of influence that he had with the promisor (saprai 2013). the capacity to make engagements is the ability to do legal actions, both those carried out by individuals (personal entities) and corporations (legal entities). if the subject who commits legal action is in the form of an individual, according to article 1329 of the indonesian civil code, each person is capable of making an agreement unless the law states that it is incapable to enter into an agreement. as explained in article 1330 of the indonesian civil code. if the legal subject is in the form of a legal entity (for example a limited liability company, also known as perseroan terbatas or pt http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 323 available online at http://journal.unnes.ac.id/sju/index.php/jils in indonesian), the authority to carry out legal actions is carried out for and in the name of pt interests which can only be carried out by adults who have directorship in the pt or adults who are authorized (power of attorney) by the board to represent the pt (indiraharti 2014). regarding a certain matter, it means that what will be agreed upon must be clear and detailed (type, amount and price) or information on the object, known the rights and obligations of each party so that no dispute occurs between the parties. the reason (causa) is lawful. the word kausa is translated from the word oorzaak (dutch) atau causa (latin) which is meant in the case of this agreement does not mean something that causes someone to make an agreement, but refers to the content and purpose of the agreement itself. for example in a sale and purchase agreement, the content and purpose or power of attorney is the one who wants the property rights of an item, while the other party wants money. lawful clause mean that the content of the agreement do not conflict with the public order, decency and law (lestari and santoso 2017). by fulfilling these four conditions, then an agreement becomes legal and legally binding for the parties who make it. the promised parties must intend that the agreement they make is legally binding. the court must be assured of the purpose of legally binding. legally binding means that the agreement creates rights and obligations for parties that is recognized by the law (evalina 2014). as the agreement becomes a legally binding instrument, it also creates rights and obligations to the parties in the agreement. if such rights cannot be practiced and/or such obligations is not done by one party, then the agreement is considered breached. breached in the agreement can come in may forms, such as: not doing what is stipulated, doing what is stipulated but partially, doing what is stipulated fully but late, or even doing what is not supposed to be done. if so then the agreement made for the sake of evidence can be used as a evidence in the court. agreement can be done written or orally. for the sake of evidence in court, a written agreement is better and convenient. whilst an oral agreement is taken into account by the law but still must be backed by another evidence. written agreement can also made by the parties without the help of a general official, such as civil law notary or land registrar. this kind of agreement is known as akta bawah tangan in indonesian terminology. akta bawah tangan or literally means underhand deed are the deed made by the parties without the help of a general official. contrary to that is the authentic deed. authentic deeds are deed made by or before a general official appointed by the government who is also authorized in his/her place of appointment, to make such deed for the public, which is made in accordance with the laws and regulations. http://journal.unnes.ac.id/sju/index.php/jils 324 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils underhand deed can be used as an evidence in the court but it is still can be denied by the opposing party. if such denial occurs, then the plaintiff must back another evidence as a proof to back the underhand deed. on the other hand, an authentic deed is a deed with perfect proofing power, which means that the parties that it’s name is written on it is the true party in the deed. the substance of the deed is also considered as truly made. the party with the name written on it cannot deny its acceptance to the deed, and if so the he/she is burdened by the obligation to proof their stand/denial. chained beding is an instrument or way to transfer rights/obligations arising from an agreement to the party that obtains rights based on a special title. if seen from beding identity as an instrument to transfer rights and/or obligations, then the beding is nothing but a form of agreement between the parties. in accordance with the translation of beding itself as a promise, the forms of the agreement itself enter into the order of the domain of civil law. therefore, the legal requirements of an agreement as stipulated in article 1320 of the indonesian civil code and the principles/principles of civil law must be considered before giving beding. if the beding violates the provisions of article 1320 of the indonesian civil code, the consequence of the defect is that it has the potential to become null and void or at least can be canceled (if it violates subjective conditions). as one form of agreement in the constellation of civil law, the chain beding has generally been done a lot, both consciously and unconsciously. this can be concluded because sometimes the act of giving a beding is not only in the form of a stand-alone agreement, but is usually associated/linked/ accompanied by other legal actions, for example: 1) in relation to the sale and purchase of land and houses living in conjunction with a chain promise not to use the residence as a boarding house, 2) a lease agreement with the right to the tenant to transfer the rental rights in part or in whole to other parties, but limited to the need to support medium-sized small businesses, or 3) land allocation agreements from management rights holders to recipients of land allocations in which the land allocation recipient promises to the management right holder that he will return the land in a vacant state since the following land use rights expire with accompanying powers to enter the yard empty. due to the nature of the chain beding which are generally accompanied by other forms of legal action, it is not uncommon for legal actions to be referred to sometimes concerning the transfer of rights which are material rights. as it is known that the transfer of material rights switches automatically to the recipient of his rights because material rights are absolute rights that give direct power over an object (in this case http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 325 available online at http://journal.unnes.ac.id/sju/index.php/jils including material prosecution rights). the said power can be in the form of power to be given pleasure and the right to make a guarantee. this material right could be maintained against everyone and is "attached" to the object if the rights are transferred. problems arise if the transfer of material rights that are automatic in nature turns out to have a chain bed behind the material rights. as individual rights in the constellation of indonesian civil law, beding does not directly/automatically transfer its rights or obligations to the holder of material rights. due to individual rights is a right that only gives a claim or collection to a person, it should be considered as a promise/agreement which of course can only be maintained (or billed) on a particular party that binds itself to the agreement or beding. the chained beding itself is born as a form of realization of the principle of consensuality and the principle of freedom of contract. the principle of consencuality focuses on achieving agreement as an important element in an agreement. if an agreement has been reached, then according to this principle an agreement has been closed so that it is only carried out by the parties. if the parties have agreed that a certain legal act will only be carried out by one party on the condition that the other party must provide certain promises that are eternal in nature, then the agreement to the agreement is a form of acceptance of the terms and conditions of the agreement in full, including chained beding. associated with the principle of the freedom of contract and the reality that the private law (agreement) in the indonesian civil code adheres to an open system. everyone is free to carry out agreements in any form, whether the form and nature are specifically regulated in the indonesian civil code and whose forms and characteristics are not specifically regulated in the indonesian civil code. this promise is one form of implementation of the principle of freedom of contract. the achievement of an agreement on the form of an agreement is considered as submission to the following obligations with all accompanying rights (if any) as the power of binding legislation. this is also a differentiating factor that puts promise (beding) as an individual right that is different from material rights. as an individual right, he was born from an agreement agreed upon by the parties so that it was clearly different from material rights which were primarily born because of the law (material rights arose from the arrangements in book ii of the indonesian civil code which embraced a closed system). the reality of the nature of book ii of the indonesian civil code which adheres to a closed system is that parties cannot enter into agreements that give birth to new material rights other than those that has been stipulated in book ii of the indonesian civil code. http://journal.unnes.ac.id/sju/index.php/jils 326 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils ordinary promise (beding) must be distinguished with chained promise (beding). in the opinion of the writer, an ordinary promise (beding) is a general form of the terms and conditions in the agreement, namely beding that is carried out only specifically for the party in the agreement and for a certain time, for example an appointment to deliver goods at certain times and conditions or promise to pay the price in full no later than the agreed date. unlike the case like a chained promise (beding). chained promise (beding) are promises (beding) which are intended to be general in nature (multi-parties for several occasions / multi party for several occasions) and are eternal to give rise to chained characteristics. in order for a chain beding to have a binding nature, the beding must be expressly stated / expressed in the agreement, so that the parties in the agreement are consciously and really aware of the purpose of the beding that will be applied on a chain basis, this must be realized that the chain beding is intended to apply even after the main achievements in the main agreement have been fully implemented. noting and considering that there is a potential party that promises a chain of default even after the main achievements in the main agreement have been carried out in full, due to the inherent nature of the beding agreement so that the principal agreement is memorable without an exit clause, of course declared expressly to be an important matter and becomes a benchmark of whether a promise (beding) has a chain character or not (budiono 2014). not infrequently there are also beding that are intended to have chain properties but are not promised as a chain beding, which is expressly stated as a chain beding, so the beding has the consequence of being a promise (beding) normal if something like this happens then the law of beding must be considered as ordinary beding because it is not expressly expressed / expressed. moreover, it has been regulated in article 1342 of the civil code which is the basis of the argument that if the words in the agreement made by the parties are clear, the parties are considered bound even though the statement of intention that has been given is not in accordance with the original intent and purpose. lawmakers moved on to the opinion that only less clear statements must be interpreted. the sound of the provisions of article 1342 of the civil code must be read if it has been determined what was actually promised if the parties, then the parties and judges may not deviate from what has been stated (the nature of interpretation is not permitted if the words of an agreement are clear, this is what is meant with the principle of sens clair or the doctrine of clarity of meaning (sutiyoso 2013). however as the freedom of contract principle state that the parties in the agreement are free to determine the substance/content of the http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 327 available online at http://journal.unnes.ac.id/sju/index.php/jils agreement as long as it does not conflict with the public order, decency and propriety. the principle is clearly reflected in article 1338 of the indonesian civil code which states that all agreement made legally are binding as a law for those who make them (prasetyo 2017). the freedom of contract principle results in the open system of our legal private law (civil law) system. the regulations are complementary (aanvullen, regulatory). freedom of contract principle means that the parties are free to determine the contents of agreement and with whom to enter into a contractual agreement. this principle also known as principle of party autonomy, which determines the “existence” (raison d’etre, het bestaanwaarde) of an agreement. this principle is universal with the limitation only in the context of public interest and in the contract there must be a reasonable balance (pangaribuan 2019). the property and contract law are for “ends that are objectively good” for the individual and those around him. this reality then, justifies both freedom of contract and limitation to the freedom. to the end, a few are moral absolutes, or exceptionless norms. they are derived from deductions from moral precepts and guard the boundaries of contract. hence, the law recognizes the freedom of contract would not be honoured in these situations (allen 2018). the controversial issue is that the chained promise (beding berantai) is a fruit of freedom of contract principle, which everyone has the right and freedom to promise whatever they want, as long as it is agreed upon by the parties. the consensuality is needed and so on for the rest of the three other condition for an agreement to be legally valid, as stipulated in article 1330 of the indonesian civil code. because of that this also includes chained promise (beding berantai). the parties that enter into an agreement are given the right and freedom to give out promise whatever they will,including chained promise (beding berantai). it remains valid so long as the condition for an agreement to be legally valid were met (vide article 1330 of the indonesian civil code). the problem happen when the parties that come into an agreement which includes chained promise (beding berantai) that don’t fully understand the legal provisions and regulations, including but not limited to the provision for the promisor to promise it to the next party that replace its position. failure to do so is a breach of agreement (namely the chained promise) which may result a lawsuit. thats why this becomes controversial issue because the freedom of contract principle that give birth to many thing, including but not limited to chained promise (beding berantai), at the end of the day, is still not fully the “freedom” of contract and still limited by the law as written. this however is the empirical evidence of the law that didn’t recognize the freedom of contract. the implementation is left http://journal.unnes.ac.id/sju/index.php/jils 328 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils hanging without the law to fully and explicitly rule and stipulate how it was meant to be. hence the parties that come into the agreement must consult a person who fully understands the law. this is a true setback for the law in reality that such implementation of law is dependent to the subjective manner of the person. even so, not every person who understand the law, fully understand the provision regarding chained promise (beding berantai). as one of the legal profession trusted by the government to the private matter of the people, the profession of civil law notary is the law profession that mainly work with agreement after lawyer/advocate. furthermore regarding the role of notary to balance the legal protection for the parties in the making of authentic deeds that contain chained promise (beding berantai) will be elaborated in the next elaboration. the role of civil law notary to balance legal protection for the parties in the making of authentic deeds that contain chained promise (beding berantai) civil law notary is a general official authorized to make authentic deeds and other authorities as referred to in the law. indonesian notary belong to latin notaries which according to blacks are carrying out the task of serving the needs of the community in the private or civil sphere, and because notary is amaneunsis, only constrict what is said notarius in roman law is draughtsman, an amaneunsis is the person who records what is done by someone else or acknowledges what others have written. latin notary attributes are person whose attitute and position are neutral and firm. notary may not make a deed if not requested. notarial deed must be written and can and must meet the apllicable laws and regulations. viewed form its position, then a notary is tasked with carrying out part of the authority of the government. the legal actions contained in a notary deed are not legal actions of the notary, but are legal actions that contains actions, agreements and stipulations of parties who request or want their legal actions to be stated on an authentic deed. so the parties to the deed are bound to the contents of an authentic deed. notary is not an artisan making deed or a person who has a job of making a deed, but the notary in carrying out his office is based on or equipped with various legal sciences http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 329 available online at http://journal.unnes.ac.id/sju/index.php/jils and other sciences which must be mastered in an integrated manner by a notary and deed made before or by a notary having the position of proof (hendra 2014). in general, the deed is a letter that is signed, contains information about events or things that are the basis of an agreement, it can be said that the deed is a writing with which stated a legal action. authentic deeds are perfect evidence as referred to in article 1870 of the indonesian civil code, it gives among the parties including his/her heirs or those who have the rights of the parties that is perfect evidence of what was done/stated in this deed. this means having the strenght of evidence in such a way because it is considered to be attached to the deed itself so that it does not need to be proven again and for the judge it is “compulsory proof/necessity” (verplicht bewijs). therefore, whoever states that the authentic deed is fake/false, he/she must prove the falsehood of the deed, therefore, authentic deeds have external proof power, formally and materially. it is different from the party made deed which for the judge si free evidence because the new party made deed has the material evidence power after its formal strenght has been proven, while the power of formal proof has only taken place, if the parties concerned know the truth of the contents and method of making the deed (hendra 2014). based on the description above, then the deed made authentically by a general official has a perfect proofing value of a deed that includes: 1) strenght of authentic proof (uitvendige bewijskracht) the strenght of authentic proof means that the deed itself has the ability to prove itself as an authentic deed. 2) strenght as a formal proof (formele bewijskracht) in the formal sense, hence the certainty of the date of the deed is guaranteed, the truth of the signature contained in the deed, the identity of the person present (comparanten), as well as the place where the deed was made as long as a party deed, that the parties have explained as described in the deed, while the truth of the statements themselves is only certain between the parties themselves. 3) strenght as a material proof (materiele bewijskracht) the contents of the information contained in the deed is valid as true, the content has certainty as it really is, is a legitimate piece of evidence between the parties and the heirs and recipients of the recipients of their rights, with the understanding: (a) that if the deed is used before the court is sufficient and that the judge is not permitted to ask for another proof of evidence beside it; and (b) that the contrary proof is always permissable with the usual evidentiary instruments permitted according to the law. http://journal.unnes.ac.id/sju/index.php/jils 330 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils authentic deed are perfect evidence for both parties, this means that the contents of the deed by the judge are considered true as long as the untruth cannot be proven. authentic deeds do not require recognition from the parties concerned in order to have the power of proof. this brings a lot of convenience for the parties in the deed, as it cuts a lot of documental requirements if the deed is being used for court hearing in the court. civil law notary as a public official who has the authority to make authentic deeds and in carrying out the task of serving the needs of the community in the private or private sphere is likely to face agreements that promise chain beding. for this reason, notary understanding of chain beding is needed. moreover, seeing the role of notaries as an extension of the government (executive) by paying attention to norm construction in paradigmatic perspectives, especially with philosophical foundations (philosophy of paradigm), constitutional (constitutional paradigm) and juridical (juridical of paradigm) is very important for underlying the implementation of the duties of a notary in order to remain trustworthy and trusted. as a civil law notary in the state of law (rechtstaat) indonesia, authentic deed products made must be able to be authentic legal evidence and reflect legal products that can provide certainty and legal protection for all indonesian citizens (in general) and for the parties (at especially). the trust given by the parties to the civil law notary in translating a legal act into an authentic deed must be able to meet the needs of the parties for the legal certainty and protection of the law itself, both to those that have been seen now and the things that have not yet been seen and must be anticipated. therefore, it is very important for a civil law notary to be able to constrict the deed based on a philosophical, constitutional and juridical foundation (philosophy, constitutional and juridical of paradigm), as appropriate to make a product of legislation. it is said that it should be appropriate like making a product of legislation because in truth the authentic deed product will later become a different but inseparable law binding on the parties (pacta sunt servanda) (idham 2010). if in construction the authentic deed, a civil law notary will pay attention to the philosophical, constitutional and juridical foundation (philosophy, constitutional and juridical of paradigm), it will appear that if it is agreed upon in the chained beding agreement, the notary should explain in full about what the promise is (beding), the consequences that will arise are related to the agreement notarized in the notarial deed, and what must be considered in the future so that the parties can clearly understand the chain beding. because the majority of the viewers are certainly not a jurist or law person who understands the law, then the civil law notary should be able http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 331 available online at http://journal.unnes.ac.id/sju/index.php/jils to anticipate the potentials that will arise from the chained beding based on the notary's legal knowledge and constrict it entirely into the deeds in the form of articles-articles, one and the other in order to provide comprehensive and neutral understanding and legal protection for the parties. in line with the way of seeing a civil law notary by the public eye, in the position of a civil law notary attached with them is a unique characteristic that distinguishes civil law notary from other profession in the community, even to carry out the position they are necessary to be appointed by the government. they are private people who are only bound by the laws regarding their position and subsequently free in carrying out their authority given by the law. the position of civil law notary in the midst of the community and the strenght of proof from the authentic deed they made, form the perception that the civil law notary position is a position of trust. the trust given by the law and community requires the civil law notary to be responsible in carrying out that trust as good as possible and to upholds the legal ethics, dignity and nobility of the civil law notary position (edwar, dkk. 2019). of course, the civil law notary must explain comprehensively about the chained beding in a juridical manner giving rise to the rights and obligations of the parties. besides that the civil law notary must also have anticipated the consequences that will arise if the any party breaks the chained promise or chained beding, along with anything that must be considered in the future related to the chained beding even though the main achievements which are essential elements in the agreement have been fulfilled by the viewers. maybe the explanation and delivery given by the notary to the parties does not have to be done as law lectures in general, but rather poured directly into the substance of the deed articles which are then read and explained to the parties as part of the obligations of a civil law notary as stipulated in article 16 paragraph (1) letter m of the law of the republic of indonesia number 2 of 2014 regarding amendments to the law of the republic of indonesia number 30 of 2004 regarding notary position. the republic of indonesia is a legal state (droit constitutionel), meaning that any establishment of a state institution must have a legal basis so that the state institution can carry out its duties and authorities in accordance with the laws governing it (dilaga 2017). as a law institution of public official, civil law notary is governed in the law of the republic of indonesia number 2 of 2014 regarding amendments to law of the republic of indonesia number 30 of 2004 regarding notary position. this serves as the legal basis of the civil law notary in indonesia starting from 2004 (before the civil law notary was governed by the reglement op het notarisambt in indonesië). http://journal.unnes.ac.id/sju/index.php/jils 332 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils however, the implementation of the things mentioned above indirectly is part of the obligation of a notary in carrying out his position as stated in article 16 paragraph (1) letter a and letter e of the law of the republic of indonesia number 2 of 2014 regarding amendments to law of the republic of indonesia number 30 of 2004 regarding notary position. it is true that there are no sanctions and consequences imposed on the civil law notary for not carrying out the above mentioned materially and formally because notaries are not parties to the deed, there are also no consequences for the civil law notary for not comprehending the law thoroughly and deeply (not a fatal error for a notary that results in the null and void of the deed and deed concerned only having the power of proofing as an under hand deed/onderhand). whilst another argument for the importance of the role of civil law notary in the making chained beding is in the form of the authority of the civil law notary as stipulated in article 15 paragraph (1), paragraph (2) and paragraph (3) of the law of the republic of indonesia number 2 of 2014 regarding amendments to the law of the republic of indonesia number 30 of 2004 regarding notary position. on of which is the authority of a civil law notary to give out legal counseling in relation to the making of an authentic deed (notarial deed). legal counseling done by the civil law notary are part of the contribution of civil law notary to the national law development done through the socialization of laws and regulations to increase public of the legal awareness in obtaining justice to carry out their rights and obligations in the making of authentic deed. legal counseling can be done by the civil law notary with giving out the right understanding on the related laws and regulations in accordance with the deed that the parties wanted to be made. the civil law notary also doesn’t receive any honorarium in providing legal counseling to clients (ningsih 2019). civil law notary should do take care and notice of the abovementioned. as a public official whose authority is to make an authentic deed (notarial deed) which serves as a perfect proof in the court of law. civil law notary must also give out legal advice and give legal counseling to the parties as part of his/her authority as stipulated in article 15 paragraph (1), paragraph (2) and paragraph (3) of the law of the republic of indonesia number 2 of 2014 regarding amendments to the law of the republic of indonesia number 30 of 2004 regarding notary position. in accordance with the responsive law theory by philippe nonet and philip selznick, a good law must be able to identify the needs of the public. as the needs of the public was known regarding chained promise (beding berantai) in an agreement, civil law notary should be able to identify and give counseling regarding the rights and obligations of the parties in regard to the chained promise (beding berantai) and duly rule/stipulate it in the http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 333 available online at http://journal.unnes.ac.id/sju/index.php/jils authentic deed made. as responsive law reinforces the ways in which openness and integrity can support each other despite the conflict between the two, the task of civil law notary in giving out counseling and advice insures that openness is guaranteed to all parties that there is no implied intentions to one party that will bring harm to the other party. such the integrity of law is also preserved well by bringing justice and certainty to all parties in the authentic deed. as the stipulation of the chained promise (beding berantai) in the authentic deed by the civil law notary becomes a perfect evidence in the eyes of law, this also reflect the ideals of responsive law which is legality. with the main consideration basis of purpose (purpose oriented), the act of civil law notary in such manner proves to be beneficial to maintain the purpose of law. responsive law theory also allowed the use of discretion widely but according to the purpose and participation aspect with the integration of legal and social advocation. by doing so, a civil law notary that give out legal advice and counseling, become the concrete example of a civil law notary as a public official practicing discretion but within the law (which is allowed by the law as stipulated in article 15 paragraph (1), paragraph (2) and paragraph (3) of the law of the republic of indonesia number 2 of 2014 regarding amendments to the law of the republic of indonesia number 30 of 2004 regarding notary position). as already mentioned before that the civil law notary isn’t a party to the deed itself, meanwhile the parties are. and so the terms and conditions as stated in the deed made by the civil law notary becomes a fully binding instrument for the parties, including but not limited to the chained beding (if there is any). as chained beding must be promised again and again if there is a transfer of party or changes in the party of the deed, failure to do so is a default which will results to the promisor being liable to every legal responsibility, expenses and costs. if the civil law notary didn’t explain the chained promise (beding) well to be fully understand by the parties, then even though the civil law notary is not part of the deed, whilst he/she is also not required by the positive law to explain thoroughly, as part of the civil law notary action, indirectly results to someone (usually the promissor) to be in vulnerable position in the eyes of the law. for such the law tends to assess it as the promissor’s fault rather than the civil law notary’s. so it is inappropriate for such thing to happen due to the civil law notary’s incomprehension. such unfortunate that the indonesian positive law did not regulate such things as the responsibility of the civil law notary too. but so due to the concept of the civil law notary is not a party in the deed and such deed is constructed upon the request of the parties without coercion or pressure from any party. therefore only the parties that are solely responsible to what is stated in the authentic deed. http://journal.unnes.ac.id/sju/index.php/jils 334 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils although what has been mentioned above, related to the implementation of the position of a real civil law notary who is considered an educated, academic, intellectual, authoritative and trustworthy person, he certainly has a moral responsibility. it is widely understood that the implementation of the position of a notary public is as much as possible is a remuneration or a notary's contribution to the knowledge he has (academically) and the trust given to him by the people and the government together through the government (juridically-formal). therefore, studying in an ongoing manner is important for a civil law notary in carrying out his position so that it is always be trustworthy and dependable. based on what was elaborated above, the writer emphasize the necessity of the civil law notary to be able to understand and implement this research results, namely in the form of chained beding which is being transferred from one party to another party if there is any changes. such request is merely on the moral side, so as the responsibility of someone with the educational background such as a civil law notary, must not bring any harm or risk to another person which usually did not understand the law. the civil law notary is also responsible to give legal advice as stated in the law, also as a jurist he/she is the product of educational institution for the good of all mankind. conclusion chained promise (beding) is an instrument or way to transfer rights/obligations arising from an agreement to the party that obtains rights based on a special title. if seen from beding identity as an instrument to transfer rights and / or obligations, then the beding is nothing but a form of agreement between the parties. as an individual right, he was born from an agreement agreed upon by the parties so that it was clearly different from material rights which were primarily born because of the law (material rights arose from the arrangement in book ii of the civil code which adheres to a closed system). the party that gives the beding of the chain is obliged to promise that it will be returned if the material rights are transferred because otherwise he is deemed to have defaulted. ordinary beding must be distinguished by chain beding. an ordinary beding is nothing but a beding that is carried out only specifically for parties in the agreement and for a certain period of time. chain beding are promises (beding) which are intended to be general in nature (multi-parties for several occasions/multi parties for several occasions) and are eternal to give rise to chained characteristics. according to article 16 paragraph (1) letter a http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 335 available online at http://journal.unnes.ac.id/sju/index.php/jils and letter e of the republic of indonesia law number 2 of 2014 concerning amendments to the law of the republic of indonesia number 30 of 2004 concerning notary position, a notary in carrying out his position is obliged to act trustworthy, honest, thorough, independent, impartial, and safeguard the interests of the parties involved in legal actions (letter a) and provide services in accordance with the provisions of this act (letter e). for this reason, in terms of converting agreements containing chain beding to authentic deeds, it is recommended to stakeholders, notaries to: 1) explain in full about what a chaine promise (beding) is; 2) the consequences that will arise are related to the agreement notarized in the notarial deed; and 3) what must be considered in the future so that the viewers can clearly understand the chained beding. it is true that there are no sanctions and consequences imposed on the notary for not carrying out the above. but the full implementation of the duties and positions of a notary public is the responsibility of the notary publicly for the knowledge and trust given to him. references allen, adeline a. “surrogacy and limitations to freedom of contract: towards being more fully human”, harvard journal of law & public policy, 2018, 41 (3): 753-811. http://www.harvard-jlpp.com/wpcontent/uploads/sites/21/2018/05/allen-final.pdf. arifin, ridwan. “democracy on indonesian legal reform: how can people participate on laws and regulations establishment process”, jils (jurnal of indonesian legal studies), 2017, 2 (02): 155-158. https://doi.org/10.15294/jils.v2i02.19439. budiono, herlien. ajaran umum hukum perjanjian dan penerapannya di bidang kenotariatan. bandung: pt citra aditya bakti, 2014. dilaga, auria patria. “politics of law on protection to folklore in a regional autonomy perspective: rights for indigenous people”, jils (jurnal of indonesian legal studies), 2017, 2 (01): 25-36. https://doi.org/10.15294/jils.v2i01.16634. edwar, faisal a. rani dan dahlan ali. “kedudukan notaris sebagai pejabat umum ditinjau dari konsep equality before the law”, jurnal hukum & pembangunan, 2019, 49 (01): 180-201. http://dx.doi.org/10.21143/jhp.vol49.no1.1916. http://journal.unnes.ac.id/sju/index.php/jils 336 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils evalina, yessica. “karakteristik dan kaitan antara perbuatan melawan hukum dan wanprestasi”, jurnal repertorium, 2014, 1 (2): 48-56. gilalo, j. jopie. “asas keseimbangan dalam perjanjian franchise menurut ketentuan pasal 1338 kuhperdata”, jurnal hukum de’rechhtsstaat, 2015, 1 (2): 114. http://dx.doi.org/10.30997/jhd.v1i2.398. hastuti, luthfiyah trini. studi tentang wacana hukum responsif dalam politik hukum nasional di era reformasi. tesis. program pascasarjana, fakultas hukum universitas sebelas maret, surakarta, 2008. hendra, rahmad. “tanggung jawab notaris terhadap akta otentik yang penghadapnya mempergunakan identitas palsu di kota pekanbaru”, jurnal ilmu hukum, 2014, 3 (1): 6-11. idham. paradigma politik hukum pembentukan undang-undang guna meneguhkan prinsip kedaulatan rakyat dan indonesia sebagai negara hukum. bandung: pt alumni bandung, 2010. koesnoe, mohammad. “ajaran mahkamah agung tentang bagaimana seharusnya menafsirkan kitab undang-undang dari masa kolonial”, varia pengadilan tahun xi nomor 126, 1996. lantanea, yudo diharjo. “dukungan notaris dalam perekonomian dan perdagangan di era masyarakat ekonomi asean (mea)” proceedings of indonesian legal preparedness in dealing with the asean economic community (prosiding kesiapan hukum indonesia dalam menghadapi masyarakat ekonomi asean (mea)), 2nd of april, 2016: 54-69, retrieved from https://ejournal.medan.uph.edu/index.php/prosiding/article/downloa d/255/123 latumeten, pieter e. “reposisi pemberian kuasa dalam konsep “volmacht dan lastgeving” berdasarkan cita hukum pancasila”, jurnal hukum & pembangunan, 2017, 47 (1.133): 1-16. http://dx.doi.org/10.21143/jhp.vol47.no1.133. lestari, tri wahyu surya dan lukman santoso. “komparasi syarat keabsahan “sebab yang halal” dalam perjanjian konvensional dan perjanjian syariah”, jurnal hukum islam, 2017, 2 (1): 1-8. http://dx.doi.org/10.21043/yudisia.v8i2.3240. mouzas, stefanos dan michael furmston. “from contract to umbrella agreement”, cambridge law journal, 2008, 67 (1): 37-50. https://doi.org/10.1017/s0008197308000081. ningsih, ayu dan faisal. “kedudukan notaris sebagai mediator sengketa kenotariatan terkait dengan kewajiban penyuluhan hukum (legal position of notary as a mediator in notary-related dispute in connection with http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 337 available online at http://journal.unnes.ac.id/sju/index.php/jils the legal counseling obligation)”, jurnal ilmiah kebijakan hukum, 2019, 13 (2): 201-228. http://dx.doi.org/10.30641/kebijakan.2019.v13.201-228. pangaribuan, togi. “permasalahan penerapan klausula pembatasan pertanggungjawaban dalam perjanjian terkait hak menuntut ganti kerugian akibat wanprestasi”, jurnal hukum & pembangunan, 2019, 49 (2): 443-454. http://dx.doi.org/10.21143/jhp.vol49.no2.2012. prasetyo, hananto. “pembaharuan hukum perjanjian sportentertainment berbasis nilai keadilan (studi kasus pada petinju profesional di indonesia)”, jurnal pembaharuan hukum, 2017, iv (1): 65-81. http://dx.doi.org/10.26532/jph.v4i1.1645. prastomo, dimas agung dan akhmad khisni. “akibat hukum akta di bawah tangan yang dilegalisasi oleh notaris”, jurnal akta, 2017, 4 (4): 727-738. http://dx.doi.org/10.30659/akta.4.4.727%20-%20738. priyono, ery agus. “aspek keadilan dalam kontrak bisnis di indonesia (kajian pada perjanjian waralaba)”, jurnal law reform, 2018, 14 (1): 1528. https://doi.org/10.14710/lr.v14i1.20233. saprai, prince. “the penalties rule and the promise theory of contract”, canadian journal of law and jurisprudence, 2013, 26 (2): 443-469. https://doi.org/10.1017/s0841820900006147. sari, novi ratna. “komparisi syarat sahnya perjanjian menurut kitab undang-undang hukum perdata dan hukum islam”, jurnal repertorium, 2017, 4 (2): 78-89. https://jurnal.uns.ac.id/repertorium/article/view/18284. sutiyoso, bambang. “penafsiran kontrak menurut kitab undang-undang hukum perdata dan maknanya bagi para pihak yang bersangkutan”, jurnal hukum ius quia iustum, 2013, 20 (2): 207-233. https://doi.org/10.20885/iustum.vol20.iss2.art3. tan, david. transformasi hukum di bidang kontrak perdagangan internasional ke dalam hukum positif indonesia. tesis. program pascasarjana, fakultas hukum universitas internasional batam, batam, 2018. wibisana, andri gunawan. “menulis di jurnal hukum: gagasan, struktur dan gaya”, jurnal hukum & pembangunan, 2019, 49 (2): 471-496. http://dx.doi.org/10.21143/jhp.vol49.no2.2014. laws and regulations the constitution of the republic of indonesia, undang-undang dasar negara republik indonesia tahun 1945. indonesian code of civil law, kitab undang-undang hukum perdata indonesia. http://journal.unnes.ac.id/sju/index.php/jils 338 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils law of the republic of indonesia number 30 of 2004 regarding notary position, undang-undang republik indonesia nomor 30 tahun 2004 tentang jabatan notaris. law of the republic of indonesia number 2 of 2014 regarding amendments to law of the republic of indonesia number 30 of 2004 regarding notary position, undang-undang republik indonesia nomor 2 tahun 2014 tentang perubahan atas undang-undang republik indonesia nomor 30 tahun 2004 tentang jabatan notaris. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 185 available online at http://journal.unnes.ac.id/sju/index.php/jils current commentary & case note striking a balance between legal certainty, justice and utility to end the clash between bankruptcy and criminal proceedings in court decision no. 11/pdt.sus-gugatan lain-lain/2018/pn.jkt.ps and no. 3 k/pdt.sus-pailit/2019 febby mutiara nelson1 , esther melinia sondang 1, 2 faculty of law, universitas indonesia, depok, indonesia  febymutiara.n2@gmail.com submitted: march 24, 2021 revised: april 27, 2021 accepted: may 8, 2021 abstract the clash between bankruptcy and criminal proceedings is one of the obstacles which has been long faced by law enforcement officials. one of many examples of the intersection of the two proceedings is the case between the bankruptcy trustees of ksp pandawa mandiri human rights issue in various context: national and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 1, may 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0001-8512-3226 186 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils group dan nuryanto with depok district attorneys. the case caused issues with the confiscated assets that were the objects in the bankruptcy and criminal court decisions. it stemmed from the conflict between provisions in indonesian bankruptcy act and criminal procedure code. this note was conducted to analyze the judges' judicial decision-making concerning the three aspects of legal certainty, justice and utility as one way to resolve the conflict of norms. generally, the commercial court and supreme court decisions have complied with the regulations of the prevailing laws and legal principles. however, the judgments are still not comprehensive and not quite right in the decisions. the panel of judges should not only stick on the legal certainty aspect but also the justice and utility aspects. concerning the three aspects, the bankruptcy assets in the case should be handed over to the bankruptcy trustees. keywords: legal certainty; justice; utility; bankruptcy proceeding; criminal proceeding http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 187 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 185 table of contents ……………………………..…...….….. 187 introduction ………………………………….……………. 188 facts & procedural posture of the case ......….... 189 legal background & existing law.............…....….... 190 analysis of the commercial court & supreme court decision ...............................................................…..... 193 a. legal certainty.......................................................…........... 193 b. justice...........................................................................…....... 194 c. utility ………………………….……………………..…...... 195 conclusion …………………………..………………………. 196 references ………………………………………………….… 196 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. how to cite: nelson, f. m., & sondang, e. m. (2021). striking a balance between legal certainty, justice and utility to end the clash between bankruptcy and criminal proceedings in court decision no. 11/pdt.sus-gugatan lain-lain/2018/pn.jkt.pst and no. 3 k/pdt.suspailit/2019. jils (journal of indonesian legal studies), 6(1), 185-198. https://doi.org/10.15294/jils.v6i1.45979 http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/jils.v6i1.45979 188 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction in law enforcement, there are often situations in which two legal norms clash, making it seemingly impossible to conform to both norms at the same time. conflict of norms is encountered many times, including in settlement of bankruptcy cases when the enforcement of bankruptcy law intersects with criminal law enforcement. this issue has become a major obstacle faced by law enforcement officials to resolve problems within the framework of upholding the law. the case between tim kurator ksp pandawa mandiri group dan nuryanto (the “bankruptcy trustees” of ksp pandawa mandiri group and nuryanto) with kejaksaan negeri depok (the “depok district attorneys”) is one of many examples of the intersection between bankruptcy and criminal procedural law. the panel of judges on the bankruptcy case had rendered their decision before the criminal court judges stated the forfeiture of bankruptcy assets from ksp pandawa mandiri group and nuryanto. the imposition of the criminal court verdict caused issues with the confiscated assets that were the objects in the two decisions. one way to resolve the conflict of norms is to analyze other aspects than legal certainty, namely justice and utility. first, this note addresses the facts about the ksp pandawa mandiri group and nuryanto as the bankrupt debtor or criminal defendant and provide a brief explanation regarding the lawsuit by the bankruptcy trustees of ksp pandawa mandiri group and nuryanto against depok district attorneys. second, this note discusses the basics or general overview regarding conflict of norms that originated from the bankruptcy and criminal procedural law provisions regarding asset confiscation and forfeiture. third, this note also analyzes the judges' judicial decisionmaking on the lawsuit, both in the commercial court, namely decision no. 11/pdt.sus-gugatan lain-lain/2018/pn.jkt.pst, and in the supreme court, namely decision no. 3 k/pdt.sus-pailit/2019, concerning the aspects of legal certainty, justice, and utility. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 189 available online at http://journal.unnes.ac.id/sju/index.php/jils facts & procedural posture of the case on june 20, 2017, pengadilan niaga pada pengadilan negeri jakarta pusat (the “commercial court” at the central jakarta district court) declared bankruptcy of ksp pandawa mandiri group and nuryanto as its leader. at the same time, nuryanto and twenty-six other ksp pandawa mandiri group members were named suspects, which led to the confiscation of their assets. eventually, pengadilan negeri depok's decision (the “depok district court”) as outlined in decision no. 425 until 429/pid.sus/2017/pn. dpk stated that nuryanto and other members were proven to have committed banking crimes. in the criminal proceeding, the depok district court ruled to confiscate some of the bankruptcy assets and hand them over to the state. thus, the bankruptcy trustees proceeded a lawsuit against depok district attorneys to the commercial court. the panel of judges granted several claims from the bankruptcy trustees and finally returned nineteen assets that belonged to nuryanto and his wives, cicih kusnenti and nani susanti. depok district attorneys filed an appeal to this decision, but the mahkamah agung (the “supreme court”) later rejected the appeal. in both commercial court and supreme court decisions, the panel of judges conveyed their judgments regarding the position of bankruptcy assets of ksp pandawa mandiri group and nuryanto against depok district court's verdict decision no. 425 until 429/pid.sus/2017/pn. dpk determined the asset forfeiture of confiscated objects for the benefit of the state. the panel of judges at the commercial court stated that a total of nineteen assets belonging to nuryanto and his wives classified as bankruptcy assets that must be returned to the bankruptcy trustees. the reason is that nuryanto and his wives were the bankrupt debtors based on article 23 juncto http://journal.unnes.ac.id/sju/index.php/jils 190 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils article 64 paragraph (1), (2), (3) of the bankruptcy act,1 making the criminal verdict out to be non-executable. in line with the judex facti’s decision, the supreme court also classified the nineteen assets as bankruptcy assets. however, the supreme court's judgments were slightly different, where the supreme court believed that the assets' status was no longer belongs to ksp pandawa mandiri group and nuryanto. according to this judgment, the bankruptcy decision of ksp pandawa mandiri group and nuryanto caused them to attain the status as bankrupt debtors, so they no longer had ownership of the assets. another consideration was that the bankruptcy decision had been declared first before the criminal decision, resulting in the statement that the asset forfeiture could not be executed. legal background & existing law conflict of norms that occurred in the case stemmed from the conflict between provisions in indonesian bankruptcy act and criminal procedure code. the provision in article 31 paragraph (1) of the bankruptcy act states that the bankruptcy decision results in all judicial decisions regarding any part of the debtors’ assets that have been started since they obtain the bankruptcy statuses must be stopped immediately.2 on the other hand, article 39 paragraph (2) of the criminal procedure code also states that objects that are confiscated due to civil or bankruptcy proceedings can also be seized for investigation and prosecution in the criminal proceedings.3 it brings the possibility to confiscate assets in bankruptcy and criminal 1 indonesia, undang-undang nomor 37 tahun 2004 tentang kepailitan dan penundaan kewajiban pembayaran utang, ln. 131, tln. 4443 (2004), https://dpr.go.id/dokjdih/document/uu/38.pdf. 2 id. 3 indonesia, undang-undang nomor 8 tahun 1981 tentang hukum acara pidana, ln. 76, tln. 3209 (1981), https://dpr.go.id/dokjdih/document/uu/755.pdf. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 191 available online at http://journal.unnes.ac.id/sju/index.php/jils proceedings simultaneously and raises an issue regarding which one should be prioritized. based on the indonesian legal professionals’ opinions,4 as well as the results of direct interviews with a bankruptcy trustee and district prosecuting attorney,5 it can be concluded that the strongest judgment to determine the position of the general bankruptcy confiscation against the criminal confiscation is the consideration of the materials and protected interests of the respective laws underlying each confiscation. criminal confiscation contains the public interest, which has a higher position than the individual interests in the bankruptcy proceedings. therefore, the creditors' interests must be put aside for a while to protect the public interest through criminal confiscation. by prioritizing the criminal confiscation against general bankruptcy confiscation, the court must temporarily postpone the bankruptcy proceedings. after the criminal proceedings have been entirely executed, the judges should declare a verdict that determines the status of the confiscated assets, one of which is to return the concerned assets to the bankruptcy trustees, so the court could continue the bankruptcy immediately. however, article 46 paragraph (2) of the criminal procedure code6 and article 39 of indonesian penal code7 allows judges to issue a verdict of asset forfeiture for the state. based on these provisions, law enforcement could seize an asset for the state's benefit in general if the asset forfeiture is made possible by the statutory regulations. some special provisions also allow and even require the asset forfeiture for the state's benefit, such as act no. 41 of 1999 regarding 4 hrs, prokontra sita pidana vs sita umum pailit, hukumonline (2013), https://www.hukumonline.com/berita/baca/lt51836ecd9bbf8/prokontra-sitapidana-vs-sita-umum-pailit (last visited mar 22, 2021). 5 based on the interview with tiur henny monica, attorney and bankruptcy trustee at mip law firm on november 25, 2020, and oktario hutapea, district prosecuting attorney at kejaksaan negeri balikpapan on december 3, 2020. 6 indonesia, supra note 3. 7 indonesia, kitab undang-undang hukum pidana, https://jdih.mahkamahagung.go.id/index.php/hukum-acara/funcdownload/2453/chk,36adcc5cf6795fecbb488eb918929700/no_html,1/. http://journal.unnes.ac.id/sju/index.php/jils 192 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils forestry.8 furthermore, asset forfeiture is usually carried out if the objects are categorized as the corpora delicti, or in other words, the assets are resulting from criminal acts and proven to contain elements of "detrimental to the interests of the state", including objects obtained from the corruption or money laundering. besides, the public prosecutors or the judges could issue a claim or verdict on the asset forfeiture based on the trial's facts. on this matter, the principles of conflict resolution cannot be applied, especially the lex specialis derogat legi generali principle, because the lex specialis provisions must be in the same legal regime as the lex generalis.9 in this case, both forms of confiscation and decisions originated from two fields of law that have different substantive materials and protect two different interests, in which the criminal confiscation or decision that stated the asset forfeiture is in the realm of public law. in contrast, the general bankruptcy confiscation or bankruptcy decision falls within the realm of private law. therefore, another solution that can be offered is to analyze the three aspects of law enforcement following the legal doctrine by sudikno mertokusumo, balancing the juridical or legal certainty aspect with the elements of justice and utility.10 8 indonesia, undang-undang nomor 41 tahun 1999 tentang kehutanan, ln. 167, tln. 3888 (1999), https://jdih.esdm.go.id/storage/document/uu-41-1999.pdf., see art. 78 (15). 9 bagir manan, hukum positif indonesia: satu kajian teoritik 58 (2004). 10 sudikno mertokusumo, mengenal hukum suatu pengantar 145 (5 ed. 2005). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 193 available online at http://journal.unnes.ac.id/sju/index.php/jils analysis of the commercial court & supreme court decision a. legal certainty principally, the legal certainty aspect talks about the suitability of law enforcement practices with the applicable law. in the above mentioned case, the commercial court’s judgments compliant with the provisions in article 21, article 23, and article 64 paragraph (1), (2), (3) of the bankruptcy act.11 nuryanto's assets were classified as bankruptcy assets because it could be seen clearly that nuryanto was a bankrupt debtor based on the commercial court decision no. 37/pdt.sus/pkpu/2017/pn.niaga.jkt.pst. meanwhile, the assets in nuryanto's wives' names were also categorized as bankruptcy assets because there were no prenuptial agreements to separate the assets between nuryanto and his wives. however, the commercial court’s judgments are not comprehensive enough because the panel of judges did not link their considerations to the penal code and criminal procedure code provisions. when it comes to comparing the provisions in article 39 of the penal code12 and article 46 paragraph (2) of the criminal procedure code,13 these judgments are not strong enough to prioritize the general bankruptcy confiscation over the criminal verdicts. based on those provisions, the forfeiture of bankruptcy assets for the state's benefit is legally allowed, considering that the assets a quo were also obtained from criminal acts. the supreme court's judgments are also inaccurate for several reasons. first, as a bankrupt debtor, nuryanto still had the ownership of the assets in the case a quo, because article 24 paragraph (1) of the bankruptcy act states that the result of bankruptcy is the loss of the debtors’ right to manage their assets, not the loss of ownership of their 11 indonesia, supra note 1. 12 indonesia, supra note 7. 13 indonesia, supra note 3. http://journal.unnes.ac.id/sju/index.php/jils 194 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils assets.14 second, the stipulation of the bankruptcy decision cannot automatically determine whether the bankruptcy assets which are also confiscated in the criminal proceedings can be taken away for the benefit of the state. this reason is that the asset forfeiture can still be executed if proven to be true that the bankruptcy assets are obtained from criminal acts or meet other criteria as previously explained, even though the bankruptcy decision has been declared beforehand. however, since there was no element of detrimental to the state's interests in the criminal act a quo, the supreme court’s judgments are still acceptable. in conclusion, the legal certainty aspect is not enough to resolve the conflict of norms in the case a quo, because the legal provisions themselves contradict one another. therefore, other aspects besides the juridical aspect, such as aspects of justice and utility, should have been considered in both the commercial court and supreme court judgments. b. justice in terms of the aspect of justice, the definition of justice itself has many meanings and connotations. however, according to l.j. van apeldoorn, justice should not be viewed as equalization because it does not always mean that everyone should get an equal share. every case must have its considerations. if something is considered fair for someone, it is not necessarily fair for others. thus, the core of justice is when law enforcement officials could consider the balance between each protected interest, in which everyone can get as much as their share.15 applying this view to the case a quo, if the bankruptcy assets were handed over to the bankruptcy trustees and the bankruptcy settlement could quickly be executed, a balance would be achieved between the protected interests, namely the debtors' interest, 14 indonesia, supra note 1. 15 l.j. van apeldoorn, pengantar ilmu hukum 11 (oetarid sadino trans., 2000). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 195 available online at http://journal.unnes.ac.id/sju/index.php/jils creditors' interest, and public interest. the creditors’ interest would be fulfilled through the settlement of the receivables. the debtors’ interest in paying their debts and continuing their businesses without being declared bankrupt could also be fulfilled. not only that, but the public interest would also be fulfilled by the continuity of commerce in society. meanwhile, if the state took away the bankruptcy assets, the proceeds from the sale of the assets would go to the state treasury. this would violate the creditors’ interest and lead to the potential of lower values of repayment to their receivables, resulting in more significant losses for creditors. c. utility when it comes to the utility aspect, society expects the benefits of the implementation or enforcement of the law. john stuart mill argues that something is beneficial if it can produce maximum enjoyment, prosperity, and happiness and cause a little suffering to society's interests.16 concerning this aspect, the main benefit that would be obtained if the assets a quo were handed over to the bankruptcy trustees is a balanced settlement of debtors' assets under the pari passu prorata parte principle. in the case a quo, the debtors consisted of almost all elements of society in various regions of indonesia, amounting to more than thirty-nine thousand sixty-nine people with a total bill of more than idr 3,332,491,684,450. the assets could at least add value to the bankruptcy bills in a hope that this would minimize losses suffered by the creditors. meanwhile, if the state took away the bankruptcy assets, this would increase the state income to fulfill the public interest. however, in the case of a quo, there was no urgency regarding the asset forfeiture of the confiscated objects for the state because the crime did not cause losses to the state finances. moreover, the bankruptcy assets were the only source for creditors who were also victims of the debtors’ criminal act to get their rights back. after all, 16 john stuart mill, utilitarianism 10-11 (oskar piest ed., 1957). http://journal.unnes.ac.id/sju/index.php/jils 196 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils the state still had other state income sources if they did not execute the asset forfeiture. therefore, it would be more beneficial if the assets were given to the bankruptcy trustees. the assets could be sold and distributed fairly and equally to the creditors under the pari passu prorate parte principle. conclusion the commercial court and supreme court decisions have been complied with the regulations of the prevailing laws and legal principles, especially regarding juridical aspects or legal certainty in the context of bankruptcy law. however, as a whole, the commercial court and supreme court judgments are still not comprehensive and not quite right in the decisions. to resolve the conflict of norms that occurred, the panel of judges should stick on the juridical or legal certainty aspect and the aspects of justice and utility. based on those three aspects, the nineteen assets of nuryanto and his wives, which were categorized as bankruptcy assets, should be handed over to the bankruptcy trustees, tim kurator ksp pandawa mandiri group dan nuryanto. it is in line with the second, third, and fourth verdicts of the commercial court decision. as a result, the asset forfeiture in the criminal proceeding became non-executable. the legal consequences of the two decisions are the increase in bankruptcy assets of ksp pandawa mandiri group and nuryanto, and the end of the clash between bankruptcy and criminal proceedings, which would also be reached if the judgments put forward the balance between legal certainty, justice, and utility. references apeldoorn, l. j. van. (2000). pengantar ilmu hukum (oetarid sadino (ed.)). jakarta: pradnya paramita. hrs. (2013). prokontra sita pidana vs sita umum pailit. hukumonline. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 197 available online at http://journal.unnes.ac.id/sju/index.php/jils https://www.hukumonline.com/berita/baca/lt51836ecd9bbf8/pr okontra-sita-pidana-vs-sita-umum-pailit indonesia. kitab undang-undang hukum pidana. https://jdih.mahkamahagung.go.id/index.php/hukumacara/funcdownload/2453/chk,36adcc5cf6795fecbb488eb918929700/no_ht ml,1/ indonesia. (1981). undang-undang nomor 8 tahun 1981 tentang hukum acara pidana. ln. 76, tln. 3209 (1981). https://dpr.go.id/dokjdih/document/uu/755.pdf indonesia. (1999). undang-undang nomor 41 tahun 1999 tentang kehutanan. ln. 167, tln. 3888 (1999). https://jdih.esdm.go.id/storage/document/uu-41-1999.pdf indonesia. (2004). undang-undang nomor 37 tahun 2004 tentang kepailitan dan penundaan kewajiban pembayaran utang. ln. 131. tln. 4443 (2004). https://dpr.go.id/dokjdih/document/uu/38.pdf manan, b. (2004). hukum positif indonesia: satu kajian teoritik. jakarta: fh uii press. mertokusumo, s. (2005). mengenal hukum suatu pengantar (5th ed.). bandung: liberty. mill, j. s. (1957). utilitarianism (o. piest (ed.)). indianapolis: bobbsmerrill. http://journal.unnes.ac.id/sju/index.php/jils 198 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils "it's easier to invade a small country than to file a court document.” melody a. kramer why lawyers suck! hacking the legal system, part 1 about authors dr. febby mutiara nelson, s.h., m.h., is a lecturer at faculty of law, universitas indonesia since 2013. she teaches both undergraduate and postgraduate program at her institution. his area of research interest concerning procedural law studies. currently, dr. febby is the chair of the association of indonesian legal laboratories (alhi) from 2017-2021, secretary of the postgraduate doctoral program at the faculty of law, university of indonesia, central board of the indonesian chamber of commerce's business mediation institute (lembis kadin), central board of the indonesian national mediators association (mni) and management of the center for the criminal law and criminology society (mahupiki). dr. febby served as deputy chair of the lkbh-pps fh ui (2004 – 2013), the advisory board of the lkbh-pps fh ui (2014 – 2018), secretary of the department of procedural law studies of fh ui (2004 – 2013), head of the laboratory unit, legal clinic and student competition (2013 – 2019). in addition, dr. febby is also a frequent resource person regarding legal laboratory governance and module development related to legal proficiency courses, legal aid and the criminal justice system. dr. febby is also a reader of the judicial commission member candidate paper and also a resource person at the coordinating ministerial meeting with the coordinating minister for political, legal and security affairs regarding the amendment to law no. 35 of 2009 concerning narcotics. dr. febby is also active in community service activities, together with street law students every semester conducting legal counseling to marginalized communities both in indonesia and malaysia in collaboration with the university of malaya. esther melinia sondang is a graduate of the faculty of law, university of indonesia. http://journal.unnes.ac.id/sju/index.php/jils https://www.goodreads.com/work/quotes/49022865 https://www.goodreads.com/work/quotes/49022865 attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23944ec6a637 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare jils (journal of indonesian legal studies) volume 7(1) 2022 1 available online at http://journal.unnes.ac.id/sju/index.php/jils research article corrective justice and its significance on the private law markus y hage1 , panggih kusuma ningrum2 1 faculty of law, university of nusa cendana, kupang, indonesia 2 université de bourgogne franche-comté, france  markushage552@gmail.com submitted: may 21, 2021 revised: august 12, 2021 accepted: march 10, 2022 abstract this article attempts to explore corrective justice and its significant role in private law. there are many justice perspective on private law, but corrective justice is part of the view that have significant role in the work of private law. breaking the private property right charges someone to take responsibility. to what extent private law rules responsibility of the someone. corrective justice can be meassurement to take responsibility. corrective justice can be traced back to aristotle's ideas of justice and kant's ideas of rights. hans kelsen sharply criticized the concept of corrective justice for only proposing formal ideas without touching anything substantial. apart from this criticism, corrective justice remains very important in private law studies because it provides solutions between two private actors in which one benefits from the losses experienced by the other. so far, a discourse of justice and legal protection in domestic and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 7 issue 1, june 2022 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-7510-9276 https://orcid.org/0000-0002-8630-6603 2 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils the dispute settlement mechanism in private law gives the winning party a full share, while the loser does not receive any share at all. corrective justice offers a quantitative measure that balances what the defendant is deducting and what is added to the claimant's loss. the application of this principle encourages the creation of equal punishment between the disputed parties. keywords: corrective justice; private law; dispute settlement http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 3 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 1 table of contents ……………………………..….………. 3 introduction ………………………………….……………. 4 corrective justice ………………………………….….….. 6 corrective justice according to aristotle…………………. 7 corrective justice according to henry weinrib …………. 11 the significant role of corrective justice in the private law system …………………………………. 16 intrinsic and extrinsic perspectives in private law …..… 16 corrective justice in private law …………………………. 19 conclusion ………………………………………….…..…… 27 references ………………………………………………….… 28 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. how to cite: hage, y markus, and panggih kusuma ningrum. "corrective justice and its significance on the private law". jils (journal of indonesian legal studies) 7, no. 1 (2022): 1-30. https://doi.org/ 10.15294/jils.v7i1.46691 http://journal.unnes.ac.id/sju/index.php/jils 4 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction as a unifying theoretical concept1, the idea of corrective justice has made a significant contribution to private dispute settlement. corrective justice can be traced back to aristotle's2 and henry weinrib's concept of justice where the latter combines aristotle's corrective justice with rights in the perspective of immanuel kant.3 meanwhile, the idea of corrective justice was sharply criticized by hans kelsen because it was only proposing formal ideas without touching anything substantial.4 weinrib's idea of corrective justice in the internal perspective of private law has also received sharp criticism from several scholars.5 apart from these various criticisms, corrective justice remains very important in private law studies because it provides solutions between two private actors in which one benefits from the losses experienced by the other. so far, private dispute settlement gives the winning party a full share, while the loser does not receive any share at all. corrective justice offers a quantitative measure or measure those balances what is deducted from the defendant and what is added to the claimant who incurs a loss. thus, there is an equivalence to punish according to the mistakes of the disputing parties. this equivalence departs from the idea that 1 ernest j. weinrib, civil recourse and corrective justice, 39 florida state univ. law rev. 273–297 (2011). 2 aristotle, aristotle: nicomachean ethics (roger crisp ed., 2014). 3 ernest j weinrib, the idea of private law (2012). 4 hans kelsen, what is justice?, in essays in legal and moral philosophy 1–26 (1973). 5 john gardner, ernest weinrib & alan brudner, the purity and priority of private law, 46 univ. tor. law j. 459 (1996); john gardner, what is tort law for? part 1. the place of corrective justice, 30 law philos. 1–50 (2011); zoë sinel, concerns about corrective justice, 26 can. j. law jurisprud. 137–155 (2013). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 5 available online at http://journal.unnes.ac.id/sju/index.php/jils the parties contribute to the losses incurred, either the claimant or the defendant. even though there are other cases such as divorce suit, acts against the law and default are the other two things which frequently used by the disputing parties in filing a lawsuit in court. however, this article focuses on the first thing. a lawsuit occurs because the claimant feels that he has suffered losses as a result of the defendant's actions. on the other hand, the defendant benefits from the claimant’s loss. the private justice mechanism tries to solve this problem by correcting the control over an asset or property that is done unfairly or by way of against the law.6 there are two approaches in the normative view of private law. the first is a rights-oriented view and the second is a goal-oriented view. the former tends to consider private law as means to hold the legal right againts the other. the latter oriented to the function of the private law in society. if someone devastated the property right, the perpetrator must be chareged, even the charge will harm economic condition. goal-oriented view saw law to maintain the economic condition. a rights-oriented view is manifested in corrective justice especially by considering that this type of justice places fundamental equality between the parties. both are equal in obtaining rights. rather than being an end, a goal-oriented view sees rights and rights holders as means to an end. proponents of a rights-oriented view regard law as a right in itself, whereas those who otherwise regard law as a means of achieving rights. the rights-oriented view emphasizes distributive justice rather than corrective justice. these 6 marc a. loth, corrective and distributive justice in tort law, 22 maastrich. j. eur. comp. law 788–811 (2015). http://journal.unnes.ac.id/sju/index.php/jils 6 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils are two views with two different principles of justice.7 the difference between these two views is also known as the difference between the formalist-orthodox views represented by henry weinrib and the functionalist views represented by legal scholars who use an economic analysis framework of the law. this article will then discuss aristotle's and immanuel kant's ideas of corrective justice as well as the criticisms expressed by hans kelsen on corrective justice. the next section will discuss the significance of the idea of corrective justice in understanding private relations in private law. corrective justice this section describes corrective justice as proposed by aristotle and henry weinrib’s elaboration of this concept. aristotle proposed corrective justice as a specific concept of justice. aristotle's corrective justice seeks to overcome inequality in society after the implementation of the distribution of resources. this imbalance in distribution causes one party to benefit while the other is disadvantaged. corrective justice tries to restore the proportion due to one party being harmed by the other party. because there are parties who are disadvantaged and benefited in this private relationship, corrective justice seeks to explain the causes of unequal relationships. meanwhile, henry weinrib developed the idea of corrective justice to explain the emergence of the private relationship between disputing parties because it has resulted in losses on the one 7 hoggard, n. w. (2019). corrective justice and liability for misstatements (order no. 28048816). available from proquest dissertations & theses global. (2411858660). retrieved from https://search.proquest.com/dissertationstheses/corrective-justice-liability-misstatements/docview/2411858660/se2?accountid=17242 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 7 available online at http://journal.unnes.ac.id/sju/index.php/jils hand and gains on the other. weinrib detached himself from aristotle's initial framework of corrective justice along with his tendency to develop ideas about the relationship between loss and gain between disputing parties in a private relationship and his efforts to restore the relationship in order to present equality in the perspective of corrective justice. corrective justice according to aristotle corrective justice is frequently juxtaposed with its counterpart, distributive justice. while there are many scholars assume that the two are inseparable, there are others who think that they are two different things.8 this article does not take these two matters any further. corrective justice can be traced back to aristotle's (350 bc) view of justice in nicomachean ethics v. in his book, aristotle discusses two main concepts of justice, namely distributive justice and corrective justice. the latter concept sees justice as an arithmetic idea where the benefits that a person gets in an unfair way on the one hand (hereinafter referred to as the defendant) will result in the loss of another person on the other side (hereinafter referred to as the claimant). therefore, the profits that the defendant receives in an unfair way must be reduced to be added to the claimant. in nicomachean ethics v, a person can be held responsible for his/her unfair behavior. aristotle considers injustice as something that violates law and equality or fairness. on the other hand, justice is 8 for further discussion of these different views, see: stephen r. perry, on the relationship betwen corrective justice and distributive justice, in oxford essay in jurisprudence 237–263 (jeremy horder ed., fourth ser ed. 2000); andrew i. cohen, corrective vs. distributive justice: the case of apologies, 19 ethical theory moral pract. 663–677 (2016). http://journal.unnes.ac.id/sju/index.php/jils 8 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils considered as lawful, equal and fair. a person who is fair, in a legal sense, will do good. however, aristotle distinguishes between justice and virtue. virtue is related to one's moral state while justice is related to one's relationship with other people. virtue can be interpreted as a certain degree of someone's moral intrinsic in humans, while justice is a person's virtue in treating others in the view of others. justice is not judged from one's subjective judgment in treating others but from one's treatment of others in other people's judgments.9 justice does not equal obedience to the law. the obedience to the law takes the someone on the fear. justice thought being the law aims ultimately at the instantiation of the virtues in the citizen it governs. in other words, there is no similarity between justice and the actions committed even though the perpetrator feels that his actions are in accordance with the rule of law. by realizing that law is not always perfectly applicable, aristotle considers that justice is not synonymous with law. justice is needed to balance imperfections in the application of law. according to aristotle, true justice comes from a wise disposition in treating others. meanwhile, injustice is a bad practice towards others. furthermore, aristotle stated that the practice of virtue is identical to the practice of law because the law commands certain acts of virtue and legal injustice as certain bad practices.10 in aristotle's point of view, law does not provide justice because it still has to be practiced in concrete cases. the law achieves a degree of justice in legal practice when it can provide a sense of justice for the parties. thus, the next discussion is related to how legal practice can bring both sides to the table. according to aristotle, there is universal justice that generally places a person legitimately and fairly. furthermore, there is special justice which deals with one's honor, property and protection that can 9 aristotle, supra note 2. 10 roger crisp, introduction, in aristotle: nicomachean ethics vii–xxxv (2014). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 9 available online at http://journal.unnes.ac.id/sju/index.php/jils be separated from a person. this condition allows a person to experience injustice due to the actions of other people who separate the things he owns. this separation caused him to suffer losses. this condition prompted aristotle to continue his view of special justice. it divides special justice into two forms, distributive justice and rectification justice. according to aristotle, distributive justice deals with the distribution of welfare among community members. this justice uses a geometric formulation. according to the proposition of geometric justice "what each person receives is directly proportional to his or her merit".11 rectification justice, in aristotle's point of view, is justice that provides a corrective principle in individual transactions such as buying and selling, guarantees, leases and so on. corrective justice plays an important role in improving transactions. there are two forms of transactions, namely voluntary transactions, and involuntary transactions. the first was carried out publicly, while the latter, such as theft, adultery, and deception were carried out in secret.12 several scholars have tried to understand aristotle's concept of corrective justice. young, for example, equates corrective justice with restorative justice because it seeks to restore (restoring) inequality between parties when one party commits an act that is detrimental to the other. according to young, when someone makes a mistake, inequality is created, and corrective justice tries to correct this inequality by taking the gain that the perpetrator gets and then returning it to the victim. young, interpreted justice as equality based 11 aristotle, supra note 2. pp. 83-1130b 12 id. p. 85 http://journal.unnes.ac.id/sju/index.php/jils 10 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils on the idea that the position of the victim must be equal before correction can be made.13 young's view was regarded as problematic standard interpretation because compensation cannot be completely equal in value. in short, brickhouse understands the interpretation of corrective fairness standards as compensation.14 a person who commits a murder cannot be corrected by simply compensating the victim's family because the loss of a person's life cannot be fully recovered by replacing it in material form. according to brickhouse, whatever is corrected after a crime does not necessarily return something that is identical or of equal value. aristotle thought of corrective justice like a model of arithmetic proportions.15 in voluntary transactions, we do not differentiate between the parties whether a person is good or evil. the normative meaning of corrective justice is seeing something from the damage or loss that occurs, equal treatment among the parties and questioning whether someone has done an act that causes harm to others. therefore, corrective justice must treat the parties equally. it is the duty of the judge to ensure that these parties are treated equally.16 the equal is a mean by way of arithmetical proportion between the greater 13 charles m. young, aristotle’s justice, in the blackwell guide to aristotle’s nicomachean ethics (richard kraut ed., 2006). pp. 186. for furher discussion and comparison concerning the practice of justice in broader context, please also see karsudin karsudin and irma cahyaningtyas, government policy on child crime through the concept of diversion as a solution amid the spread of covid-19, 5 lex scientia law review 1-18 (2021); nnawulezi uche, and bosede remilekun adeuti, examining the reproductive rights in the wake of covid-19 pandemic in nigeria, 2 indonesian journal of law and society 29-58 (2021). 14 thomas c. brickhouse, aristotle on corrective justice, 18 j. ethics 187–205 (2014). pp. 192 15 aristotle, supra note 2. pp. 87-1132a 16 the principle of equality before the law, the principle of freedom of contract, the principle of abuse of circumstances. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 11 available online at http://journal.unnes.ac.id/sju/index.php/jils and the less. this proportion assumes that there are two parts that have the same quantity. a certain amount of this part is taken to be given to another section so that there is a bigger part and a lesser part. therefore, some parts exceed the average of one part. this process allows us to ascertain what to take from the party that gets the more shares and what to add to the lesser share. we must add to the party that has the lesser share where the average among them exceeds him and take from the largest of the three averages. arithmetic lines represent the loss and gain of an action as an unequal part. it is the duty of the judge to make this arithmetic line equal to the punishments given to all parties. the purpose of punishment is to reduce unfair benefits in order to create equality. meanwhile, the meaning of equality is the average between less and more. the advantages and disadvantages are less and more on the opposite side. thus, according to aristotle, correction of injustice or more precisely inequality is the average improvement of losses and gains.17 corrective justice according to henry weinrib weinrib's corrective justice is a further development of aristotle's concept of corrective justice. according to aristotle, corrective justice serves to maintain the distribution of wealth. thus, according to weinrib, the equality which is presupposed in corrective justice is the proportional equality of distributive justice. therefore, according to weinrib, corrective justice does not only reaffirm distributional equality which is disrupted as a result of actions that harm others. corrective justice also provides insight in explaining the 17 aristotle, supra note 2. p. 88 http://journal.unnes.ac.id/sju/index.php/jils 12 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils relationship between the advantages and disadvantages that occur between two disputing parties. according to weinrib, the advantage of aristotle's idea of justice lies in his mathematical formalism. the fairness function is believed to be the same as a mathematical equation that connects one term to another by means of the sign "equal to" or "mean", depending on the mathematical operations performed. mathematical operating systems introduce differentiation that relates various elements in different ways. thus, the perceived justice has different ways of regulating the relationship between one person and another.18 weinrib provides a fairly easy explanation in understanding aristotle's concept of justice as a "mean". according to him, justice can be understood if we focus on external things. its main virtue related to the external effects. we can consider ourselves wise, but our virtue cannot be measured internally because only other people can judge our virtue. this is because our actions have an impact on other people around us. we never really feel or understand the impact of our actions except from someone else's point of view. in the example of character given by aristotle, a person who runs away from war not only has a flawed character but also harms others. virtue falls within the realm of justice, according to weinrib, when justice is viewed from an interpersonal point of view. thus, although aristotle sees both justice in holdings and the justice that is coextensive with virtue as other-directed, he draws a distinction between them. in the justice that is coextensive with virtue, equality plays no role: the external standpoint is merely grafted on to a virtue already intelligible in terms of a single person. in contrast, equality is the defining 18 ernest j. weinrib, corrective justice, in the idea of private law 56–83 (2012). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 13 available online at http://journal.unnes.ac.id/sju/index.php/jils feature of justice in holdings, because justice in holdings is intrinsically other-directed.19 justice as an interpersonal view, however, is not a single answer. one person's view of justice can be excessive for others. this means that one's view of justice is very relative to the views of others. departed from the idea of equality as the mean described by aristotle, weinrib provides an answer to this relativity. according to him, equality is a relational concept because something considered to be equal not with itself, but only with others. on the other hand, equality is the 'mean' because it relies on unfair excesses due to overemphasizing comparisons with others.20 weinrib emphasizes justice as equality rather than virtue because virtue is intrinsic to a person while equality tends to direct one's view to something external. one of the quite controversial concepts about aristotle's corrective justice is the improvement of fairness of the interaction or transaction between two parties. aristotle did not provide a sufficiently convincing explanation of this matter so that this concept opens different interpretations of voluntary and involuntary transactions or interactions.21 19 id. 60 20 id. 61. some different practices in indonesian context, justice transformed in various types and method based on culture, social condition, as well as the society development itself. please see pane erina and adam muhammad yanis, reconstruction of mining policies on justice in lampung province, 8 bestuur 139151 (2020); linda sudiono, the vulnerability of women in dealing with covid-19 pandemic: feminist legal theory approach, 7 hasanuddin law review 241259 (2021). bambang sugiri, nurini aprilianda, and hanif hartadi, the position of convict as justice collaborator in revealing organized crime, 8 padjadjaran jurnal ilmu hukum 255-274 (2021). 21 brickhouse, supra note 14. http://journal.unnes.ac.id/sju/index.php/jils 14 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils weinrib looks at the bipolar nature of interactions and transactions in corrective justice between two parties. according to him, aristotle himself described these two parties as active and passive. corrective justice looks at whether someone has benefited and someone has suffered a loss. the interaction between these two parties has resulted in the emergence of the claimant as to the injured party and the defendant as the beneficiary. hence, this creates a condition where both the perpetrator and the victim share an imbalance. this profit-loss relationship causes the disturbance of corrective justice.22 apart from providing an explanation of who is disadvantaged and who is benefiting, corrective justice bipolarity also provides an alternative for improvement. the defendant became aware that the profit he was getting came from the losses suffered by the claimant. the main actor in this repair process is the judge. according to weinrib, aristotle compared a judge with a geometer. a judge draws back the centerline so that it can be a starting point in drawing lines that shift from a spherical planet. in the initial condition, some parts have shifted to be smaller, and some parts have become bigger. the judge drew a narrow line in order to match the original conditions. by drawing a line into two equal parts, the judge vindicates quantitative equality.23 weinrib's concept of corrective justice bipolarity provides many ideas in explaining the interaction between the claimant who suffered losses and the defendant who caused the loss. corrective justice can also be used to correct violations of quantitative equality because the bipolar notion of loss provides an understanding of the claimant's losses that correlate with the defendant's gain. the bipolar conception of the judicial process also 22 weinrib, supra note 18.p. 64 23 id. p. 65 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 15 available online at http://journal.unnes.ac.id/sju/index.php/jils justifies the quantitative equality of the complainants and recovers the gains and losses of the parties concerned.24 aristotle's view of justice received criticism from hans kelsen. in his article entitled what is justice, kelsen criticizes aristotle's because he only thinks about justice formally and defines unfair behavior based on the social order that existed in positive morals and law. aristotle tries to build a scientific concept of justice by using formal science. for kelsen, aristotle's attempt to define absolute justice in a rational, scientific, or quasi-scientific manner was futile.25 aristotle claims to discover the scientific concept of justice by applying the mathematico-geometric method. aristotle's model of justice, according to kelsen, is like a measuring rod who can draw the midpoint line by supposing that the two endpoints are known. to know evil, it is assumed that we already know what virtue is. aristotle's virtue is the opposite of vices. meanwhile, goodness is what is considered good by the existing social order. crime is presumed to be an act that is self-evident based on the moral tradition of the nation at a certain time. thus, according to kelsen, aristotle had left good and evil to an authoritative order that defined them. for kelsen, this view serves to maintain the existing order in society. according to kelsen, the mean-formula offered by aristotle has a tautological character. this can be seen from the application of virtue to justice. according to aristotle, the just conduct is the mean between doing injustice and suffering it. according to kelsen, the formula about virtue formulated in the 'middle line' between injustice and suffering does not make sense to be used as a metaphor because both are equally injustice. a person who commits injustice automatically causes others to suffer. thus, aristotle cannot use the mean-formula to determine crime or injustice because he only 24 id. p. 66 25 kelsen, supra note 4. p. 19 http://journal.unnes.ac.id/sju/index.php/jils 16 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils presupposes injustice as something that is self-evident. furthermore, kelsen argues that aristotle's view of justice is formalistic because the assessment of injustice is defined and enforced based on the existence of an established social order and his judgment is based on moral and legal positivism.26 the significant role of corrective justice in the private law system intrinsic and extrinsic perspectives in private law an understanding of corrective justice needs to be seen in the scope of the idea of private law. there are at least two views that can be used in looking at private law and the operation of corrective justice in it. the first view looks at private law from an internal or intrinsic perspective. meanwhile, the second view looks at private law from an external or extrinsic perspective. henry weinrib represents the first view, which according to sinel was characterized by the term’s formalism or orthodoxy. this view sees that private law aims for itself because it has an internal structure for the concept, doctrine 26 see id. p. 20. some corrective justice implementations have different perspectives and pratices, please also see mochammad abizar yusro, shareholders lawsuit: fraud on minority law enforcement to invent corrective justice during the covid19, 8 law research review quarterly (2022); maulana fahmi idris, access to justice for disability in the perspective of john rawls theory (case of demak regecy indonesia), 2 journal of law and legal reform 391-400 (2021); irma yuliawati, comparison of rechterlijk pardon concept on 2019 criminal code draft and article 70 law number 11 of 2012 concerning juvenile criminal justice system, 2 journal of law and legal reform 603-622 (2021). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 17 available online at http://journal.unnes.ac.id/sju/index.php/jils and character of legal reasoning. whereas the opposite view, characterized by the term functionalist, see private law as aimed at serving social purposes. sinel considers that the orthodox view of civil law is due to the fact that private law is seen more from the internal side and ignores the external side. weinrib became one of the targets of sinel’s criticism. sinel clearly included weinrib in the footnote of his 2013 article where he quoted weinrib's statement in the idea of private law "one must understand private law from an internal perspective". weinrib clearly admits that his viewpoint of private law theory is indeed based on an internal understanding of private law. even the idea of private law that he conveyed departed from his criticism of the functionalist view. he understood that the functionalists wanted to use private law to serve social purposes. this view, according to weinrib, is considered incomplete because he views that civil law has its own concept, distinctive institutional arrangement, and its own mode of reasoning. these aspects are internal components of the private law structure that have not been able to map out extrinsic goals as expected by the adherents of the functionalist. weinrib confidently stated that "the only thing to be said is that the purpose of private law is to be private law".27 weinrib's ideas of formalism embedded its root in kant's practical ratio. weinrib understands kant's practical ratio as a conception of free will. practical ratio is related to the purposive behavior of human being in dealing with others. man's goal is a mental representation of his desire to become a reality. practical ratio expresses the rationality that is inherent in every human purposeful behavior. when man uses his practical ratio, he will think about the consequences of his actions in the conception of causality.28 27 weinrib, supra note 3. pp. 4-5 28 ernest j. weinrib, kantian right, in the idea of private law 84–113 (2012). p. 91 http://journal.unnes.ac.id/sju/index.php/jils 18 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils weinrib criticizes the functionalist idea of understanding civil law because this idea considers civil law as an autonomous entity. meanwhile, he himself considers civil law as autonomous law.29 functionalists consider that the independence of legal discipline for other disciplines will cause law to be like a parasite for economic, political, moral and other disciplines. weinrib also considered that the functionalist view had mixed politics and law so that legal justification was not much different from political justification. although functionalists realize that law has its own conceptions and terms, they consider it as a consequence that justifies social interests. therefore, conceptions and legal terms are not considered something rigid for functionalists. finally, weinrib thinks that functionalists do not differentiate between private and public. for functionalists, the law is public. state legal authorities have goals and write these goals in a code of law whose objectives are mutually agreed upon.30 weinrib brings formalism to private law by looking at it from an internal perspective.31 the functionalist view, which is influenced by legal and economic analysis, will assume that every private suit must be settled by testing the efficiency of the actions of the parties. efficiency is a measure of whether an action can be judged or not. on the other hand, from an internal perspective, weinrib considers that a civil lawsuit is an attempt to resolve the violation of rights committed by the defendant. private law from an internal perspective affirms the claimant's right to wrongdoing or negligence committed by the defendant.32 in general, weinrib considers that the internal 29 weinrib criticisms of the functionalism could be seen in: weinrib, supra note 3. pp. 6-10 30 ernest j. weinrib, the autonomy of private law, in the idea of private law 204– 231 (2012). 31 kritik weinrib atas fungsionalisme dapat dilihat dalam: weinrib, supra note 3. p. 6-10 32 id. p. 11 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 19 available online at http://journal.unnes.ac.id/sju/index.php/jils perspective in private law has a double conception, private law as explanandum and explanan, as objects and as a way of understanding.33 weinrib's ideas of formalism have sparked debate with functionalists.34 to begin his project of critique of the internal understanding of private law, sinel departed from the difference between the internal and external understanding of civil law. sinel uses different terms to replace the terms internal and external. he prefers to use the terms intrinsic and extrinsic. thus, these two terms can be used interchangeably to convey the same meaning. the intrinsic or internal approach in private law is understood as a perspective that evaluates civil law according to its own provisions. private law is understood by being explained through its own concept and not through an 'external reference'.35 it is quite clear that sinel conceptualizes an intrinsic or internal perspective as an understanding of the rights and obligations that are at the core of the private law relationship. in contrast, an external or extrinsic perspective approaches private law from an external perspective. institutions and concepts are evaluated and made to be understood from the outside. in the end, an extrinsic perspective will provide an understanding that private law is not only related to the legal rights and obligations of the parties but also sees the settlement of civil cases apart from this legal relationship.36 33 id. p. 16 34 sinel, supra note 5; gardner, supra note 5; gardner, weinrib, and brudner, supra note 5. 35 sinel, supra note 5. p. 138 36 id. p. 140 http://journal.unnes.ac.id/sju/index.php/jils 20 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils corrective justice in private law in private law, corrective justice provides an adequate picture in operationalizing case settlement. according to weinrib, corrective justice is a form of private relations because it integrates three aspects, namely unity, kind and character. the correlation between loss and gain is a form that represents the unity of the private law relationship. because losses and advantages are not two independent things, they are related to one another. taking this viewpoint, weinrib treats corrective justice as a single normative unit. corrective justice also defines different forms of private relations. corrective equivalence of losses and gains is an operational category that differs from a series of equivalent proportions. profits and losses are correlated in an interaction relationship between disputing parties. in contrast to distributive justice that cannot provide equality in the relationship between losses and benefits, corrective justice provides a distinctive justification structure in explaining the bipolar relationship between two parties in a private dispute. private character aspects of corrective justice are derived from procedural and doctrinal expressions of the bipolarity relationship of the parties. the representation of bipolarity in terms of losses and gains related to each other indicates a relationship between obligations and rights.37 corrective justice can also provide ideas for legal scholars to resolve private disputes between the parties. according to weinrib, corrective justice has a very close relationship with the private case's settlement.38 weinrib's argument overthrows ben zipursky's argument which states that there is no relationship between civil dispute resolution and corrective justice. weinrib's rebuttal to 37 weinrib, supra note 18. pp. 75-76 38 weinrib, supra note 1. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 21 available online at http://journal.unnes.ac.id/sju/index.php/jils zipursky's article departs from zipursky's view which states that an unlawful act that causes harm to a person provides a legal position for someone to file a lawsuit against the perpetrator or the defendant. this is based on the assumption that a private suit against someone must depart from a violation of rights. unfortunately, this idea is not strong enough to understand the correlative relationship between the claimant and the defendant if it is based solely on violations. weinrib bases his critique on zipursky's argument by describing a series of transactional relationships between the parties in a private dispute. this series of relationships can be concluded as structural, substantial and constitutional relationships. the structural relationship shows that the parties are structured in a correlative relationship from their normative position as the claimant (the injured person) and the defendant (the person who benefits from the claimant's loss) who both experience injustice. this correlative structure is expressed through the rights of the claimant and the responsibilities or obligations of the respondent. the claimant's right is the claimant's juridical manifestation to be free to determine himself in his relationships with other people. finally, the constitutional issue is related to the legal order that guarantees the rights and obligations that must be upheld by law enforcement agencies, in this case the court whose function is to articulate and implement the responsibilities of the parties because there is a correlation between the two. for weinrib, these three structures are important features of private law in its normative practice.39 these three concepts with different terms from weinrib are the normative basis for someone to apply for private liability. a person can file a lawsuit against another person if he can prove that a claimant is a person who has a legal relationship with the accused 39 id. p. 273-275 http://journal.unnes.ac.id/sju/index.php/jils 22 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils person. this legal relationship provides legal standing for the claimant to bring the defendant before the court. without any legal relationship, the lawsuit filed by the claimant is considered an error in the persona. this legal relationship can be proven by filing legal issues that underlie the legal relationship of the claimant and defendant. if in a legal issue of sale and purchase, the claimant must show that the defendant is the person who bought or sold goods to the claimant. furthermore, in this legal relationship, there are rights and obligations borne by both parties. for example, in the practice of buying and selling, a buyer is obliged to make payments to the seller. the seller is entitled to receive payment from the buyer either in cash or in installments. on the other hand, the seller is obliged to deliver the goods to the buyer after the price and payment mechanism have been agreed by both parties. this structure is regulated in contract law which enforces treaty doctrines such as freedom of contract and prohibition of abuse of circumstances. violation of legal doctrines can result in the invalidation of covenants. finally, constitutional issues related to dispute resolution forums. this rule is a formal procedure designed to resolve private disputes between the two parties. a dispute can be settled if there is an official forum that has institutional legitimacy to resolve the dispute. a person cannot bring up a dispute settlement problem in a forum where the decision has no binding force. the dispute resolution forum must have a binding decision so that the parties submit and obey the decisions issued. liability for a person for damages committed against the law has been accepted as a common view in the understanding of corrective justice in private law. however, this view was challenged by zoe sinel. he considers this view as an orthodox corrective justice thought in civil law because it obscures fundamental conventions. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 23 available online at http://journal.unnes.ac.id/sju/index.php/jils according to sinel, the orthodox view does not consider the defendant's initial action in respecting the claimant's rights.40 weinrib's corrective justice is a concept of accountability as a consequence of a correlative relationship between two parties. this relationship has created two conditions, one party gets an advantage and another party gets a loss. corrective justice seeks to restore this condition in order to avoid imbalance between the two parties.41 weinrib seems to contribute to a causal relationship between the losses incurred by one party and the gains derived from the other. this causal relationship does not only focus on actions but also on the process of transfer of assets because there are parties who are injured and there are parties who are benefited. a causal relationship seems insufficient to hold one party accountable since this relationship focuses more on deeds. there is a possibility that someone's actions have a cause and effect for someone's loss, but there is no condition that there is a party who benefits. as in an act without error, even though there is a loss, the absence of a mistake makes it impossible for a person to be held liable. weinrib itself distinguishes between factual and normative advantages and disadvantages. this distinction is an implication of using kant's idea of rights and aristotle's corrective justice.42 both are used to build the concept of private liability when there are conditions between two parties claiming profit and loss. profits and losses are factually related to changes in the condition of the claimant's property ownership. meanwhile, profit and loss from the normative point of view refer to the difference between the assets owned by the parties and what should be owned by both parties according to the norms 40 sinel, supra note 5. 41 ernest j. weinrib, restitutionary damages as corrective justice, 1 theor. inq. law 47–83 (2000). 42 ernest j. weinrib, correlativity, in the idea of private law 114–144 (2012). http://journal.unnes.ac.id/sju/index.php/jils 24 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils governing the interaction of the parties.43 in short, the advantages and disadvantages of the factual side do not have legal consequences, but rather moral ones. on the other hand, gains and losses from the normative side have legal consequences that give rise to legal liability for a person. from the above explanation, corrective justice is useful to justify private liability for someone who raises profit and loss conditions from a normative side. corrective justice embodies the norms that govern the conditions for fair interaction. the advantages and disadvantages must be seen from what should be owned and what should not be from a normative point of view. according to weinrib, normative advantage occurs when the ownership of one's assets is greater than what it should be according to the norm. meanwhile, normative loss occurs when a person's property ownership is smaller than what it should be according to the norm. this conclusion accords with corrective justice's being a justificatory structure. the gains and losses have the same character as the structure they define they refer to the norm that figures in the process of justification. accordingly, the gain and loss are the excess over and the shortfall from one's due.44 the absence of a beneficiary party makes it possible for someone who is responsible for causing a loss to not be able to compensate for the loss because the defendant does not have assets that can compensate for the losses incurred. conversely, corrective justice bases private liability on a person. for example, there is an addition of property and wealth acquired by someone in an illegal way. on the other hand, there was someone who suffered an unfair 43 id. p. 115 44 id. p. 117 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 25 available online at http://journal.unnes.ac.id/sju/index.php/jils loss. this relationship of increase and loss is what we want to correct so that someone is not harmed unfairly, and someone gets an increase in property unfairly as well. the same concept also described by weinrib about correlativity in understanding corrective justice to justify one's mistakes. in the idea of private law, weinrib gives a different term. he uses the terms unifying, bipolar and expressive to replace the terms’ structure, substance and constitutional. in the idea of private law, weinrib argues that the correlation between profit and loss requires justification in the framework of corrective justice. according to weinrib, this correlation must be unifying, bipolar and expressive of transactional equivalence. correlation must be tied to the normativity of profit and loss. the relationships must depend on each other and rest on the same norms. meanwhile, the bipolar nature of correlation must exist because normative advantages and disadvantages must link one party to another as something that can be justified. furthermore, it is expressive because the correlation must express transactional equality where the parties realize the advantages and disadvantages based on their preferential position.45 therefore, corrective justice in weinrib's view provides a justification for the injured party to file a lawsuit against the beneficiary. this claim can be justified as long as there is correlation between the claimant and defendant. the claimant considers that the defendant has received additional assets which should have belonged to the claimant. 45 id. p. 120. in fact, there are similarities of the three concepts of correlativity offered by weinrib with different terms. because he wrote at different times, weinrib is considered to revise the old with the new. civil recourse and corrective justice was written in 2011, while his book the idea of private law was written in 2012, a year after the publication of his paper about corrective justice. therefore, the latter term will be used here. http://journal.unnes.ac.id/sju/index.php/jils 26 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils the claimant's lawsuit can be justified if there is a normative correlation of gains and losses. this correlation can be checked from the nature of the bond (unifying) between the claimant and the defendant. this commitment can be interpreted as a legal relationship between the claimant and the defendant. in the case of agreement, it is very easy to determine the legal relationship between the claimant and the defendant because they base this legal relationship on the basis of the agreement. however, in cases of illegal acts, this legal relationship can be seen from the actions of the claimant and defendant. an act is considered against the law if the act has direct consequences for the claimant's loss. the bipolar correlation between the parties can be seen from the rights and obligations of the parties. in a written agreement, the rights and obligations of the parties can be seen from the achievements that must be made by the parties who are bound in the agreement. if a party does not perform, either on purpose or negligently, there are rights that are not fulfilled and obligations that are not carried out. in the case of illegal acts, rights and obligations can be based on the appropriateness of a person to do and not act which has a correlation with the benefit for the maker and the loss for someone. the nature of appropriateness can be seen from the expressions of the parties in an equal transaction relationship from the perspective of the community. although it will be problematic in cases of illegal acts by the authorities, because the relationship between the claimant and the defendant, in this case the state, is in an unequal relationship.46 in a community life, every member of society has references and guidelines in interacting and transacting with one 46 for the problem of unequal relations in acts against the law, see: peter cane, tort law and public functions, in philosophical foundations of the law of torts 148–168 (2014). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 27 available online at http://journal.unnes.ac.id/sju/index.php/jils another. this relationship is sometimes not legal in nature, but it has become a community habit to avoid fraudulent acts that can harm others. fraud sometimes escapes the rule of law, so it is very narrow to understand the relationship of rights and obligations only to a written legal relationship. thus, society's habit of avoiding fraudulent acts that can harm others can be considered as the norm. violation of the norm of not cheating can be a basis for someone who feels aggrieved by this fraudulent act to file a lawsuit. conclusion corrective justice provides a philosophical foundation for private law scholars to think about private liability. private law regulates private relationships between parties in carrying out equal interactions and transactions. corrective justice prohibits a person from adding undue wealth. if his wealth increases, it means that the wealth he gets comes from something that he shouldn't have. on the other hand, there is a person who loses the wealth he should have. corrective justice tries to solve this injustice by taking one's wealth which should not be earned. meanwhile, a person who experiences an unnecessary loss, by corrective justice, will gain additional wealth from someone's wealth which should not belong to him. taking someone's wealth which is obtained from something that should not be owned can be justified if there is a correlation between the disputing parties. this correlation can be justified if there is a bonding relationship that unites, bipolar and expressive between the two parties. without these three correlations, it is unjustifiable to take one's property to add to others. http://journal.unnes.ac.id/sju/index.php/jils 28 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils references adi, emmanuel. “penal mediation as the concept of restorative justice in the draft criminal procedure code”. lex scientia law review 5, no. 1 (2021): 139-64. https://doi.org/10.15294/lesrev.v5i1.46704. adner, gar marc, john, ernest weinrib, and alan brudner, “the purity and priority of private 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inquiries in law 1, no. 1 (2000): 47–83. https://doi.org/10.2202/1565-3404.1000. yusro, mochammad abizar. “shareholders lawsuit: fraud on minority law enforcement to invent corrective justice during the covid-19”. law research review quarterly 8, no. 1 (2022). https://doi.org/10.15294/lrrq.v8i1.54473. yuliawati, irma. “comparison of rechterlijk pardon concept on 2019 criminal code draft and article 70 law number 11 of 2012 concerning juvenile criminal justice system”. journal of law and legal reform 2, no. 4 (2021): 603-622. https://doi.org/10.15294/jllr.v2i4.48368. about authors markus y hage is a lecturer at university of nusa cendana, kupang, indonesia. he also serving a visiting lecturer at some universities in indonesia. his area of expertise is concerning legal studies, philosophy of law, and legal theory. some of his works have been published in several journals and books such as kritik sebagai metode dalam ilmu sosial: sifat realistik dan relevansi bagi praksis pembentukan hukum (jurnal hukum proyuris, 2020); teori hukum (genta publishing, 2013); and teori hukum strategi tertib manusia lintas ruang dan generasi (genta publishing, 2010). panggih kusuma ningrum is a phd fellow at lucien tesnière research center (crit) linguistics and automatic language processing, university of franche-comté, france. her area of expertise concerning employment law, artificial intelligence, data mining, and empirical legal studies. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.2202/1565-3404.1000 https://doi.org/10.15294/lrrq.v8i1.54473 https://doi.org/10.15294/jllr.v2i4.48368 https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=beu_qtgaaaaj&sortby=pubdate&citation_for_view=beu_qtgaaaaj:zylm7y9caggc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=beu_qtgaaaaj&sortby=pubdate&citation_for_view=beu_qtgaaaaj:zylm7y9caggc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=beu_qtgaaaaj&sortby=pubdate&citation_for_view=beu_qtgaaaaj:w7oemfmy1hyc 7 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 volume 4 issue 01 may 2019 jils 4 (1) 2019, pp. 7-20 issn (print) 2548-1584 issn (online) 2548-1592 the doctrine of product liability and negligence cannot be applied to malwareembedded software ayup suran ningsih ayup suran ningsih faculty of law, universitas negeri semarang, indonesia department of private and commercial law  ayuupp@mail.unnes.ac.id table of contents introduction …………………………………………………….. 8 the concept of product liability ………………..……... 9 analysis of the doctrine of product liability and negligence cannot be applied to malwareembedded software …………………………………………… 11 conclusion ………………………………………………………… 19 reference ………….……………………………………………….. 19 10.15294/jils.v4i01.29157 copyright © 2019 by author(s) this work is licensed under a creative commons attributionsharealike 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. jils (journal of indonesian legal studies) mailto:ayuupp@mail.unnes.ac.id 8 http://journal.unnes.ac.id/sju/index.php/jils ayup suran ningsih jils 4 (1) may 2019, 7-20 article info abstract submitted on february 2019 approved on february 2019 published on may 2019 today, the development of technology is remarkable; the world has faced the industrial era 4.0 where people are now more popular to carry out various financial transactions, both the process of buying and selling and other financial transactions through digital transactions. this digital transaction is run by an information system and is provided with special software that runs it. damage to computer devices and software can cause all kinds of damage. this damage can cause someone to experience damage or loss due to damaged hardware or software, one or more of the following legal areas can provide recovery; such as contract law; technology law; consumer protection; and product liability. this article is to examine the doctrine of product liability and negligence cannot be applied to malware-embedded software. the approach of the research method used in this article is normative juridical. the normative juridical approach is an approach carried out based on the main legal material by examining theories, concepts, legal principles and laws and regulations related to this research. keywords: information technology law, product liability, negligence, malwareembedded software how to cite (chicago manual style) ningsih, ayup suran. “the doctrine of product liability and negligence cannot be applied to malware-embedded software”, jils (journal of indonesian legal studies), 4 (1), 2019: 7-20 introduction software is undoubtedly the driving force of the information society. there have been occasions when defects in software have had very serious consequences. the term „safety-critical‟ is applied to software (and hardware) which is used in situations involving risk to life and limb. defect in computer equipment and software can cause all manner of damage. the failure of flight control systems, nuclear power station systems and defense systems could result in major loss of life. if a person suffers loss or damage as a result of defective hardware or software, one or more of the following areas of law might provide a remedy: contract; law of negligence; negligent misstatement; or product liability (bainbridge 2008). liability laws designed to compensate 9 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 for harms caused by defective products may also affect innovation incentives (galasso & luo 2018). defects in software controlling financial transactions may result in economic loss and as shown above there is clearly capacity for physical damage resulting in such defects. predictably enough, those in the software industry are concerned as to the likelihood of personal and corporate liability when undetected faults in software precipitate such events. from the point of view of potential plaintiffs, it is more a question of whether there will be recourse to any remedy if they are injured as a result of such incidents when the cause of the problem might have been neither reasonably foreseeable nor even detectable. liability law with respect to computer software has important implications. potential lawsuits act as both a deterrent to software development as well as an incentive for the creation of reliable software. while other areas of tort law have been present for generations, tort law with respect to computer software is a new area of law. it is important for computer scientist to play a role in the policy-making process of this field as new laws and precedents are developed. this article is to examine the doctrine of product liability and negligence cannot be applied to malware-embedded software. the approach of the research method used in this article is normative juridical. the normative juridical approach is carried out by analyzing and interpreting theoretical matters concerning principles, conceptions, doctrines and legal norms relating to information technology law. the normative juridical approach is an approach carried out based on the main legal material by examining theories, concepts, legal principles and laws and regulations related to this research. this approach is also known as the literature approach, which is by studying books, regulations and other documents related to this research (irianto & shidarta 2011). the concept of product liability tort law regards software as a product, rather than a service, will also play a role in determining the application of product liability to software defects. a “product” is defined under products liability as a “tangible personal property distributed commercially for use or consumption” (sunghyo 2017). unlike other component parts of a vehicle, because software is not a tangible “manufactured product,” a court might find that manufacturing defect theory is not applicable for software or algorithmic errors. while many courts have applied contract law in software related cases under the uniform commercial code, software manufacturers have not been found strictly liable for software defects based on tort product liability theories. 10 http://journal.unnes.ac.id/sju/index.php/jils ayup suran ningsih jils 4 (1) may 2019, 7-20 products liability refers to the liability of any or all parties along the chain of manufacture of any product for damage caused by that product. this includes the manufacturer of component parts (at the top of the chain), an assembling manufacturer, the wholesaler, and the retail store owner (at the bottom of the chain). products containing inherent defects that cause harm to a consumer (or someone to whom the product was loaned, given, etc.) of the product would be the subjects of products liability suits. while products are generally thought of as tangible personal property, products liability has stretched that definition to include intangibles (for example gas), naturals (for example pets), real estate (for example house), and writings (for example navigational charts). products liability is derived mainly from torts law. types of products liability claims products liability claims can be based on negligence, strict liability, or breach of warranty of fitness. this will typically depend on the jurisdiction within which the claim is based, due to the fact that there is no federal products liability law. defects that create liability there are three types of product defects that incur liability in manufacturers and suppliers: a. design defects design defects are inherent, as they exist before the product is manufactured. while, the item might serve its purpose well, it can be unreasonably dangerous to use due to a design flaw. b. manufacturing defects manufacturing defects occur during the construction or production of the item. only a few out of many products of the same type are flawed in this case. c. defects in marketing defects in marketing deal with improper instructions and failures to warn consumers of latent dangers in the product. d. strict liability products liability is generally considered a strict liability offense. with regard to products liability, a defendant is liable when the plaintiff proves that the product is defective, regardless of the defendant's intent. it is irrelevant whether the manufacturer or supplier exercised great care; if there is a defect in the product that causes harm, he or she will be liable for it. 11 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 analysis of the doctrine of product liability and negligence cannot be applied to malware-embedded software 1. is software a product or service? software is defined as a device that is part of a computer that is not in the form of hardware, which can specifically be interpreted as a computer program. in article 1 number 14 of law number 11 of 2008 concerning electronic information and transactions (ite law), computers are defined as "tools for processing electronic, magnetic, optical, or system data that carry out functions of logic, arithmetic, and storage." this software was built with the aim of running an electronic system. electronic systems are defined in article 1 number 5 of the ite law as a series of electronic devices and procedures that function to prepare, collect, process, analyze, store, display, announce, transmit, and/or distribute electronic information. while the definition of electronic information is given in article 1 number 1 of the ite law as follows: “electronic information is one or a set of electronic data, including but not limited to writing, sound, images, maps, designs, and photos, electronic data interchange (edi), electronic mail (electronic mail), telegram, telex, telecopy or the like, letters, signs, numbers, codes, processed access, symbols, or perforations that have meaning or can be understood by people who are able to understand them.” some of the problems surrounding the categorization of software from a legal point of view have already surfaced, usually in the commercial field and relating to whether supply of software can be properly classified as supply of goods or supply of services. computer programs frustrate the law‟s traditional categories; they exhibit characteristics of both concrete property and abstract knowledge (rowland 1991). based on section 2(1) consumer protection act 1987 requires that: ...where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage. the people referred to in subsection (2) are a producer, an own-brander or an importer. product is defined in section (1) as: any goods or electricity and (subject to subsection (3) below) includes a product which is comprised in another product, 12 http://journal.unnes.ac.id/sju/index.php/jils ayup suran ningsih jils 4 (1) may 2019, 7-20 whether by virtue of being a component part or raw material or otherwise. in other words, the components comprising a product are also treated as products in their own right. it is well known these days that computers consist of both hardware and software and so in broad terms these could be termed the components of the computer system. such a naive analysis would suggest that software would attract the application of the consumer protection act in the same way as any other component of a product. the simplicity of this approach may be challenged by the unique nature of software. it is the dichotomy between the tangible and intangible nature of software which lies at the heart of the problem of applying the existing legal provisions. in relation to product liability this has become of paramount importance only relatively recently, not only because of the consumer protection act, but also because it is only within this time scale that computer-controlled systems have really begun to impinge on the life of the man in the street. if software can be classified as a product, then there will be liability if there is a defect in the software and that defect causes damage. all software errors may not give rise to defects in this sense; only the ones which could lead to damage. furthermore, it is also should be distinguished some different types of software. software performs many functions and there have been attempts to distinguish certain types primarily as to whether they constitute goods or services but this discussion has also spilled over into the debate as to whether software can be regarded as a product. software can basically be divided in to two classes; embedded software and applications software. embedded software is the software which is supplied with the system by the manufacturer, it is available as soon as the system is switched on and is very difficult for anyone other than the producer to change. embedded software is nearly always firmware, a generic term for software in rom (read only memory); it is always in the computer's memory and starts executing the program immediately. consider a lift control system for example. it is required that the moment the system is on the program is executed and remains in operation until the system is switched off again. this is achieved by means of embedded software or firmware supplied as an integral part of the lift system. applications software on the other hand causes a system to perform a particular function, thus a general purpose pc can be loaded with different software packages to provide spread sheet, word processor, database functions etc. in such a general purpose computer, the amount of embedded software is minimal, just sufficient to allow the computer to read in the information supplied by the applications software. such software is frequently 'off-the shelf' but may also be specially written to enable a general system to carry out a specific task (rowland 1991). 13 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 2. the nature of software defects prior to considering issues of legal liability, it might be helpful to attempt a brief analysis of the nature of the differences which exist between software and the tangible product with which society and the law are more familiar. defects in a traditional product such as a motor car may originate in one of two ways. design defects in a traditional product such as a motor car may originate in one of two ways. design defects relate to some failure at the design stage, with the consequence that the failure node will be exhibited in every species of the product. a more commonplace form of defect is introduced during the production stage (lloyd 2011). where software is concerned, the nature of the digital copying process is such that there can be a high degree of confidence that every copy of software will be identical. if particular copies are corrupted, the likelihood is that they will not work at all, so that any defect becomes apparent before any damage is caused. if customer should wish to establish that a copy of a word processing program which has been purchased is not of satisfactory quality, argument will have to proceed by reference to word processing programs produced by other producers and to general standards. although the task can be accomplished, it is a significantly more onerous burden than that faced by a person claiming the existence of a production defect (lloyd 2011). 3. basis of liability yusof et.al (2016) emphasized that liability can arise in four basic ways, as follows: a. direct 1) a defective software program causes a radiology machine to malfunction, burning a patient. 2) hardware malfunction, e.g. computer catches fire b. indirect 1) a software produces incorrect information which feeds directly into a physical process, for example atm dispenses notes 2) software produces incorrect information which is relied on by a human mind, for example computer-controlled traffic signals, reliance on spreadsheet calculations to build a bridge or calculate tax liability 3) a bug cause a cardiology machine to produce inaccurate information. the physician relies upon the machine as being correct, and administers the wrong treatment. c. negligence negligence is an arrangement in which liability is established only after it is shown that a producer failed to take a given level of care in producing the product. software functions normally, but a technician uses the machine improperly, administers the wrong treatment, or misinterprets results. 14 http://journal.unnes.ac.id/sju/index.php/jils ayup suran ningsih jils 4 (1) may 2019, 7-20 under the negligence interpretation of liability, the victim would need to prove that the manufacturer of the software failed to develop and test its product well enough to the point where it was reasonably confident that the product was safe to operate, or that the operator of the software failed to use the software correctly or grossly failed to interpret the software‟s finding correctly. d. no-fault software functions properly and medical personnel act appropriately. however, injury occurs because of imperfections of the test or the test is not designed to find the patient‟s specific abnormality. 4. what is malware? malicious software (malware) is any software that gives partial to full control of your computer to do whatever the malware creator wants. malware can be a virus, worm, trojan, adware, spyware, root kit, etc. the damage done can vary from something slight as changing the author's name on a document to full control of your machine without your ability to easily find out. most malware requires the user to initiate its operation. some vectors of attack include attachments in e-mails, browsing a malicious website that installs software after the user clicks ok on a pop-up, and from vulnerabilities in the operating system or programs. malware is not limited to one operating system. malware types can be categorized as follows: viruses, worms, trojans, and backdoors seek to infect and spread themselves to create more havoc. adware and spyware seek to embed themselves to watch what the user does and act upon that data. root kits seek to give full access of your machine to the attacker to do what they want (anonym, ucla 2014). 5. negligence negligence is part of an area of law known as tort. basically, a tort is a civil wrong, independent of contract. it imposes legal liabilities on a person who has acted carelessly or unreasonably omits to do something. under certain circumstances a person will be liable to another for failing to exercise a required duty of care. a claim in negligence does not depend on the presence of a contract, so if the person injured is someone other than the buyer, that person can still sue. the buyer also should be able to sue, but on the basis of breach of contract if the item is defective and fails to comply with implied terms such as those concerning satisfactory quality and fitness for purpose. to be able to sue in negligence, three essential ingredients must be present (hermana & silfianti 2011): a. a duty of care owed to the injured party; b. a breach of that duty of care; and c. consequential loss (loss which is a direct and natural result of the breach of duty of care negligence can be thought of as an early from of product liability and has developed over the years to its present wide scope, although this is 15 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 tempered to some extent by the growth of insurance. it is also limited, to some extent, by police considerations. this is particularly so where the loss is purely economic or the claim is in respect of nervous shock or if a professional would be exposed to an unlimited number of claims from persons other than those for whom he performed his duties. in the other conditions, when negligence and computers analyzed, stated that computers and computer software could kill or cause serious injury; however, negligent liability does not stop at personal injury but extends to damage to property. computer software has the potential to cause serious loss of life as well as causing economic losses. it is possible that the software developer was negligent in writing and testing of the software. the fact that an action in negligence lies without the need for a contract is important both for computer program writers and manufactures of computer equipment. if a program is licensed by a publisher, the program author could be liable in negligence even though he is not a party to the license agreement (setiadi, sucahyo and hasibuan 2012). there are limitations, however, to the scope of the law of negligence. a person writing a computer program, or company manufacturing computer equipment, will not necessarily is potentially liable to the world at large in negligence. the person/company will be liable, however, to those whom they could contemplate being adversely affected by any negligent act or omission by them. a future limiting factor is that the claimant bears the burden of proof; he has to show that the defendant was negligent and this is not always easy to do. 6. product liability and software transactions carried out electronically are basically engagements or legal relationships carried out electronically by combining computer-based electronic system networks with communication systems, which are further facilitated by the existence of a global computer network or internet (vide article 1 number 2 of the ite law). a legal relation is a relationship between two or more parties (legal subjects) that have legal consequences (giving rise to rights and obligations) and are regulated by law. in this case the right is the authority or role that is in someone (the holder) to act on something that is the object of that right to another person. whereas, the obligation is something that must be fulfilled or carried out by a person to obtain his rights or because he has already obtained his rights in a legal relationship. the object of law is something that is useful, valuable, and valuable to the legal subject and can be used as the subject of legal relations. while, the legal subject is anything that can be a supporter of their rights and obligations or has legal authority (rechtsbevoegdheid). in the private sphere, the legal relationship will include relations between individuals, while in the public sphere, the legal relationship will include relations between citizens and the government and relations between 16 http://journal.unnes.ac.id/sju/index.php/jils ayup suran ningsih jils 4 (1) may 2019, 7-20 fellow members of the community that are not intended for commercial purposes, which include public services and information transactions between government organizations. in commercial activities, transactions have a very important role. in general, the meaning of transactions is often reduced as a sale and purchase agreement between the parties that agree to it, even though in a juridical perspective, the terminology of the transaction is basically the existence of an agreement or legal relationship that occurs between the parties. the juridical meaning of transactions is basically emphasized in the material aspects of the legal relationship agreed upon by the parties, not formally legal actions. therefore, the existence of legal provisions regarding the engagement remains binding even though there are changes in the media and changes in procedures for transactions. this is of course an exception in the context of legal relations involving immovable objects, because in that context the actions have been determined by law, that is, they must be carried out in “light” and “cash”. in the scope of civilization, especially the engagement aspect, the meaning of the transaction will refer to civilization, especially the engagement aspect, the meaning of electronic legal transactions itself will include buying and selling, licenses, insurance, leasing and other agreements born in accordance with the development of trade mechanisms in the community. in the public sphere, the legal relationship will include relations between citizens and the government and relations between fellow members of the community that are not intended for commercial purposes. product liability is direct civil liability (strict liability) from the business actor for losses suffered by consumers due to using the products they produce. this responsibility is applied in the event that there is no agreement (no private of contract) between business actors and consumers. this condition as what happened in united kingdom, that the entry into force of the product liability provisions of the consumer protection act 1987 has brought about major changes in the non-contractual liability regime in the united kingdom. the act, which was introduced pursuant to the requirements of an ec directive on the approximation of the laws, regulations and administrative provisions of the member states concerning liability for defective products, serves principally to introduce a system of no fault liability in respect of certain forms of injury and damage. a producer will incur liability only when a product is defective. to date, there has been almost no litigation concerned directly with the noncontractual liability of software producers or suppliers. it seems unlikely that this can continue. whilst the requirement that a claimant establish negligence may be a barrier to claims based in negligence, there appears steadily increasing recognition that software is to be regarded as a product and hence will be subject to the product liability regime. although the limitation to situations where software causes injury or damage to non-commercial property is a significant one, the ever-expanding range of software 17 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 applications must make a similar expansion in litigation a not unreasonable prospect. 7. misrepresentation misrepresentation claims that the vendor fraudulently misrepresented the capabilities of the software. in order to prevail under this theory, the plaintiff must show that it was damaged because: a. the vendor misrepresented a material fact concerning the software, and b. the plaintiff justifiably relied on this misrepresentation a fraudulent misrepresentation claim is especially threatening to software vendors because under this theory, a plaintiff may sue when it suffers damages solely to its intangible economic interest (such as business reputation), rather than personal injuries or damage to tangible personal property (rowland & macdonald 2005). section 3 of the misrepresentation act 1967 provides that a clause in a contract which purports to exclude or restrict liability for misrepresentation will only be effective if it satisfies the requirement of reasonableness. the burden of proof is on the person seeking to rely on the clause. if a computer salesperson claims that the computer she is selling will run a particular software package and this claim turns out to be untrue, it will be for the company selling the computer to show that any exemption clause it hopes to rely on passes the test of reasonableness. the test is laid out in section 11 of the unfair contract terms act 1977. in a subsequent appeal to the house of lords, the court of appeal‟s decision was affirmed. it should be noted that, by section 7 of the unfair contract terms act 1977, liability for defective products under part i of the consumer protection act 1987 cannot be excluded or limited by any contract term. 8. professional malpractice in this variation on the negligence action, the software vendor is characterized as a professional and therefore is held to owe to the plaintiff not merely a duty to act reasonably, but a higher duty to use a professional standard of care, analogous to the duty required of a physician or lawyer. this theory could apply only if the provision of software is characterized as a service, rather than as a sale of product. 9. strict liability if programs are viewed as a product, then strict liability may be applicable and a plaintiff would not need to prove the “absence of due care” element needed in proving negligence cases. under strict liability claims, consumers only need to prove that there was a defect in the product under the tort law. strict liability is an arrangement in which a producer is held liable regardless of how much care the producer took to make the product reliable. 18 http://journal.unnes.ac.id/sju/index.php/jils ayup suran ningsih jils 4 (1) may 2019, 7-20 under a strict liability interpretation, a person who is harmed in some way by a software failure would have the right to obtain damages either from the manufacturer of the software or the institution operating the software when the error occurred. under current law, strict liability principles are not applicable to doctors and hospital, although strict liability is being applied more frequently these days to manufacturers of medical software. in a modern society such as ours, where technology rapidly advances and changes and computer software is being used in more innovative situations, the “chilling” effect on technology as a result of imposing strict liability would be too great. furthermore, the protection afforded under a warranty theory, negligence theory, and computer malpractice theory can adequately protect and compensate the consumer without preventing the innovation that is so desirable in our complex and technologically growing society. if strict liability were imposed upon computer software manufactures, society could lose out on very important and potentially lifesaving computer software (miyaki 1992). for strict liability to apply to the manufacturer of software, the user must have used the product in a reasonable fashion and the product must have reached the user without substantial change. if the user is injured while using the product, the user need show only that the product caused the injury, and that the product was sold in a defective or unreasonably dangerous condition. the alleged defect could be a defect in the design or manufacturing of the software, or it could simply be a failure to warn of hazards. an important feature of the strict liability theory is that it renders legally irrelevant the issue of whether the vendor acted reasonably. by preventing the vendor from presenting exculpatory arguments, this theory in effect forces software manufacturers to guarantee the safety of their products. the strict liability theory also has an effect on recoverable damages. if it is applied, everyone in the chain of distribution of the product may be liable for the plaintiff‟s damages. however, users are not generally compensated for economic loss under a strict liability theory, but only for personal injury or property damage. as product liability and reputation may achieve in isolation the same outcomes in terms of incentives, it is clear, and in fact it seems to be widely shared idea, that they are substitutes as instruments to induce adequate behaviour. the complementarity between product liability and reputation: product liability reduces the cost of reputational sanctions. this becomes particularly obvious when one considers the range of parameters for which trade between company and consumers can be sustained. product liability makes it possible that market reputation allows cooperation to happen for a larger set of parameter values than market reputation alone would be able to induce to equilibrium. in other words legal, liability makes reputation more successful in ensuring trade in markets (ganuza, gomez, and robles 2016). 19 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 conclusion the doctrine of product liability and negligence cannot be applied to malware-embedded software. based on the analyses above and many theories regarding the product liability and negligence, the doctrine of product liability and negligence cannot be applied to malware-embedded software. product liability applies to defective products though not software. the law of negligence can apply to defective hardware and software (original software by producers) but it is not easy to apply. there are many terms and conditions and also test to prove the negligence of defective software. malwareembedded software usually is not original software by producer. if a consumer want to install a software, they should accept the terms and conditions but many consumers did not read the terms and conditions. because of that it is hard to apply product liability and negligence to producer for malwareembedded software. references anonym, ucla. “how to protect against malicious software”, online, 2014, http://www.seas.ucla.edu/security/malware.html. accessed: 25 january 2019). online bainbridge, david. introduction to information technology law sixth edition. united kingdom: pearson longman, 2008. google scholar crossref galasso, alberto & luo, hong. “how does product liability risk affect innovation? evidence from medical implants.” cepr discussion paper no. dp13036, 2018. google scholar crossref ganuza, juan josé. gomez, fernando, robles, marta. “product liability versus reputation”, the journal of law, economics, and organization, 32 (2), 2016: 213–241. google scholar crossref hermana, budi & silfianti, widya. 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https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1113&context=chtlj;computer 20 http://journal.unnes.ac.id/sju/index.php/jils ayup suran ningsih jils 4 (1) may 2019, 7-20 rowland, diane. liability for defective software. london: the cambrian law review, 1991, 78 (22): 73-92. google scholar crossref rowland, diane & macdonald, elizabeth. information technology law third edition, australia: cavendish publishing, 2005. google scholar crossref setiadi, farisya, sucahyo, yudho giri and hasibuan, zainal a. “an overview of the development indonesia national cyber security”, international journal of information technology & computer science, 2012, 6 (1): 106-114. google scholar crossref sunghyo, kim. “crashed software: assessing product liability for software defects in automated vehicles.” duke law & technology review, 2018, 16 (1): 300-317. google scholar crossref zawiyah m. yusof, et.al. teknologi maklumat dan alam siber: isu etika dan undang-undang (information technology and cyber world: ethical and legal issues). kuala lumpur: pearson education, 2016. online https://scholar.google.co.id/scholar?hl=en&as_sdt=0%2c5&q=liability+for+defective+software%2c+rowland+diane&btng= https://heinonline.org/hol/landingpage?handle=hein.journals/camblr22&div=8&id=&page= https://scholar.google.co.id/scholar?hl=en&as_sdt=0%2c5&q=information+technology+law%2c+rowland+diane&btng= https://books.google.co.id/books?id=-vttir8nibec&pg=pr4&dq=information+technology+law+third+edition,+australia:+cavendish+publishing,+2005+rowland+diane&hl=id&sa=x&ved=0ahukewir2jxamdnhahukxiskhy6fcgoq6aeikdaa#v=onepage&q=information%20technology%20law%20third%20edition%2c%20australia%3a%20cavendish%20publishing%2c%202005%20rowland%20diane&f=false https://scholar.google.co.id/scholar?hl=en&as_sdt=0%2c5&q=an+overview+of+the+development+indonesia+national+cyber+security&btng= http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.394.3095&rep=rep1&type=pdf https://scholar.google.co.id/scholar?hl=en&as_sdt=0%2c5&q=crashed+software%3a+assessing+product+liability+for+software+defects+in+automated+vehicles&btng= https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1322&context=dltr https://www.researchgate.net/publication/296676306_teknologi_maklumat_dan_alam_siber_isu_etika_dan_undang-undang_information_technology_and_cyber_world_ethical_and_legal_issues attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23953cbe2007 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare 103 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 volume 4 issue 01 may 2019 jils 4 (1) 2019, pp. 103-118 issn (print) 2548-1584 issn (online) 2548-1592 law enforcement policy on violation of illegal cigarette circulation in indonesia (study on indonesian customs directorate general) cahyo baksoro indra maulana cahyo baskoro indra maulana postgraduate program, faculty of law universitas diponegoro jl. imam bardjo, s.h., undip pleburan, semarang 50241  cahyobaskoro18@gmail.com table of contents introduction ………………………………………………….….. 104 basis for criminal law enforcement in cases of illegal excise …………………………………... 107 law enforcement policy by ppns directorate general of customs and excise on circulation of illegal cigarettes ………………….. 110 role of ppns of the directorate general of customs and excise in law enforcement of circulation of illegal cigarettes ……………………. 113 conclusion ………………………………………………………… 115 references …………………………………………………………. 116 10.15294/jils.v4i01.29176 copyright © 2019 by author(s) this work is licensed under a creative commons attributionsharealike 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. jils (journal of indonesian legal studies) 104 http://journal.unnes.ac.id/sju/index.php/jils cahyo baskoro indra maulana jils 4 (1) may 2019, 103-118 article info abstract submitted on february 2019 approved on april 2019 published on may 2019 the tax regulation is subject to a criminal act, then the government in this directorate of the general of customs and excise supervision, the circulation of illegal cigarettes. this research was conducted by the directorate general of customs and excise as well as a crackdown on illegal cigarettes. this research uses the juridical normative method. results of the study concludes as follows: first, the examination of the goods, examination of the goods, building or other place, letter or document to the goods, or against the people, against the enforcement of goods and means of transport; and locking, sealing, and / or sticking a necessary safeguards against goods or means of transport. second, the efforts of the directorate general of performance and surveillance, dissemination, coaching against the cigarette companies, opening up information services and billing, complaints against criminal acts of illegal cigarettes. keywords: policy, law enforcement, criminal offence, illegal cigarette circulation, violation how to cite (chicago manual style) maulana, cahyo baskoro indra. “law enforcement policy on violation of illegal cigarette circulation in indonesia (study on indonesian customs directorate general)”, jils (journal of indonesian legal studies), 4 (1), 2019: 103-118 introduction cigarettes are tobacco products that are still the prima donna for state revenues from the taxation sector in indonesia, especially the imposition of excise duties which are overseen by customs and excise of civil servant investigators (penyidik pegawai negeri sipil, hereinafter called as ppns) who are principally criminal investigators in the customs and excise field. as an investigator of a criminal offense related to imposition of excise, the directorate general of customs and excise has special authority as an investigator as referred to in law number 8 of 1981 concerning criminal procedure law (kuhap) to conduct criminal investigations in the field of customs and excise (sutarto 2010). the law enforcement system in general, and included in criminal acts relating to excise, must also refer to law number 8 of 1981 concerning 105 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 criminal procedure law where the principle must be based on pancasila and the 1945 law. the principle is a form of state commitment upholding human rights and guaranteeing all colors of the country and its position in law and government that must uphold the law and government without exception, which means that all countries without exception must uphold the law of the government and uphold the law which can be interpreted as obeying the law. article 1 paragraph (3) of the 1945 constitution states that the republic of indonesia is a legal state where law is made as the supreme commander in realizing truth and justice in indonesia. law is a series of rules that control certain behaviors and actions of human life in living in a community (purnomo 1978). the law applied in the community is not only to guarantee people's rights and maintain order, but also used as a social engineering tool. in many cases of illegal excise, for example, very comprehensive law enforcement is urgently needed given the potential for substantial state losses in this case. moreover, the potential of tobacco in indonesia with export value in 2013 reached 41,765 tons spread in many countries (directorate general of estate crops 2015; bps 2018), even the government prioritized excise on tobacco products as one of the country's revenue sources that has a high economic function because of the contribution of excise tax on tobacco to a very large state treasury, besides that it becomes a vast employment area and absorbs large labor in tobacco processing into cigarettes which involves many workers ranging from tobacco farmers, clove farmers and factory workers showed that the magnitude of the role of tobacco in economic development in indonesia. cigarettes or tobacco products are still the prima donna for state recipients from the taxation sector, especially excise in addition to imposition of excise on beverages containing ethyl alcohol (minuman mengandung etil alkohol, hereinafter called as mmea) and ea (ethyl alcohol) (syahputra 2016). imposition of excise on cigarette products directly has made a very significant contribution to the country, and each year revenues always exceeds the target set and on the one hand the target set is always up. the success of the directorate general of customs collects income for the state coffers of the excise sector in reality. this condition is not always followed by the obligations of taxpayers and excise. this is evidenced by the fact that there are still many factories or cigarette companies that do not use excise tapes on their products or misuse the use of excise band only to avoid the obligation to pay state taxes. the amount of illegal cigarette circulation can be proven by the destruction of 6.9 million illegal cigarettes as well as 45 (forty five) bottles of illegal alcoholic beverages which are the result of prosecution of customs and excise customs office semarang's supervision and service office for the period 2015 to 2018 and has saved state revenues from potential losses of 3 billion rupiah (customs of semarang 2019; asmara 2018). to prevent the occurrence of non-compliance with employers, the government in this case the directorate general of customs and excise 106 http://journal.unnes.ac.id/sju/index.php/jils cahyo baskoro indra maulana jils 4 (1) may 2019, 103-118 undertakes supervision and prevention of the circulation of violations from these entrepreneurs, whether circulated by cigarettes or the acquisition of rights not from the employers’ obligations or other forms of violations by issuing various policies. circulation of cigarettes without excise band is one of the criminal acts. in addition, in order to optimize the efforts of state revenue from the excise sector, in addition to efforts to affirm the excise tax object, it also needs to improve excise tax administration systems and increase law enforcement efforts and affirmation of employee guidance in the context of good governance. cases of violations in the excise sector that are still seriously handled by law enforcement directorate general of customs and excise are cases of illegal cigarette circulation that are increasingly widespread in indonesia with many cigarette factories or companies that do not have permits for ownership of the principal number of entrepreneurs subject to excise and not using ribbons excise on its products or by misusing the use of excise ribbons to avoid taxable obligations on the state, therefore that the large potential countries lose their income from cigarette taxes (sutedi 2012). the directorate general of customs and excise as law enforcement officers in the field of customs and excise should take action against all people (individuals or groups) or companies that commit violations in the field of excise indiscriminately looking at certain circumstances or reasons, therefore as to provide a deterrent effect on the perpetrators violations in the field of excise against the circulation of illegal cigarettes in the market throughout indonesia. basically the imposition of excise tariffs based on minister of finance regulation no.146/pmk.010/2017 of october 25, 2017 has experienced a fairly high increase from the previous excise tariff. the increase in high excise tariffs besides being able to increase state revenues can have a negative impact, among others on the circulation of plain cigarettes (without clipping excise band), attachment of fake excise tapes, attachment of excise tapes that are not intended, such as lower retail prices and not in accordance with its designation. moreover, if the violations in the excise sector are increasingly prevalent in indonesia, this can result in the failure to achieve excise tax receipts optimally and the widespread circulation of illegal cigarettes. therefore, to avoid undesirable things need to be firmly enforced (law enforcement) therefore that the target of excise tax can be achieved optimally. based on the description of the background above, this article discusses two important things, namely: (1) how is the law enforcement policy by the civil servant investigator of the directorate general of customs and excise on violations of criminal acts of illegal cigarette circulation in the community and (2) what are the efforts of ppns directorate general of customs and excise to deal with the circulation of illegal cigarettes in indonesia? the article used is a normative juridical research method, with an approach in the application of normative law consisting of a statute approach, conceptual approach, historical approach, and comparative approach 107 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 (diantha 2016). the research specifications on this article are descriptiveanalytical, namely making a systematic, factual and accurate planning of facts therefore it is expected to get a clear and detailed description and description. the data collection method used is literature study and document study which examines primary legal materials, secondary legal materials, and tertiary legal materials related to the investigation policy by civil servant investigators of the directorate general of customs and excise in the framework of law enforcement on cigarette circulation violations illegal. the data analysis method used in this study was carried out qualitatively. data are analyzed normatively-qualitatively by interpreting and constructing statements contained in documents and legislation. basis for criminal law enforcement in cases of illegal excise law enforcement is intended to improve order and legal certainty in the community (sanyoto 2008). law enforcement is the stage of the process of the realization of an abstract concept into a reality (ishaq 2012). law enforcement in principle must be able to provide benefits or utility for the community, but in addition the community also expects law enforcement to achieve justice. however, we cannot deny that what is considered useful (sociologically) is not necessarily fair, and vice versa what is perceived as fair (philosophically), is not necessarily useful for the community (nawawi arief 2007). law enforcement can guarantee legal certainty, order and legal protection in the era of modernization and globalization when this can be done, if various dimensions of legal life always maintain harmony, balance and harmony between civil moralities and based on actual values in civilized societies. as an activity process that includes various parties including the community within the framework of achieving goals, it is imperative to look at the enforcement of criminal law as a criminal justice system (reksodiputro 1993). the strength of our criminal justice system depends on its ability to convict the guilty and clear the innocent. but we know that innocent people are sometimes wrongly convicted and the guilty remain free to victimize others (muhlhausen 2018). for the people of indonesia, the weak law enforcement by the state apparatus will determine the perception of whether or not the law will be obeyed. if law enforcement in the community carried out by the state apparatus is weak, then the public will perceive the law as non-existent and as if they are in the jungle, on the contrary if the law enforcement by the state apparatus is strong and done well and consistently, then the community realizes the law exists and they will submit and obey it (jainah 2012). 108 http://journal.unnes.ac.id/sju/index.php/jils cahyo baskoro indra maulana jils 4 (1) may 2019, 103-118 1. customs and excise ppns in illegal excise law enforcement law number 39 of 2007 concerning excise states that civil servant and excise investigators are certain civil servants officials within the directorate general of customs and excise are given special authority as investigators as referred to in act number 8 of 1981 concerning criminal procedure law to conduct investigation of criminal offenses in the field of customs. the investigator in the law has the authority to: a. receiving reports or statements from someone about a criminal act in the customs sector; b. calling people to be heard and examined as suspects or witnesses; c. research, search and collect information relating to criminal acts in the customs sector; c. making arrests and detention of persons suspected of committing a criminal act in the customs sector; d. request information and evidence from people suspected of committing a criminal offense in the customs sector; e. photographing or recording through audiovisual media on people, goods, transportation facilities, or anything that can be used as evidence of criminal acts in the customs sector; f. check records and bookkeeping that are required according to this law and other related books; g. taking fingerprints; h. searching for houses, clothes, or bodies; i. search the place or means of transport and inspect the items contained in it if a criminal act is suspected in the field of customs; j. confiscating objects suspected of being goods that can be used as evidence in connection with criminal cases in the customs sector; k. providing safety signs and securing anything that can be used as evidence in connection with criminal acts in the customs sector; m. bring in experts needed in connection with the examination of criminal offenses in the customs sector; l. order to stop people who are suspected of committing a criminal offense in the customs sector and examine the suspect's personal identification; m. stop the investigation; and n. conduct other actions that are necessary for the smooth investigation of criminal offenses in the field of customs according to responsible law. the above authority has a function regulated in article 3 of the regulation of the director general of customs and excise number p53/bc/2010 which states that the authority under supervision is carried out in accordance with the following functions: a. main functions by the intelligence unit, enforcement unit and investigation unit; b. special functions by the narcotics unit; and c. supporting functions by the operation facility unit. 109 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 2. crime of illegal cigarette circulation crime comes from a term known in dutch criminal law, namely strafbaarfeit. although this term is found in dutch wvs, so is the dutch wvs (kuhp), but at this time there is no official explanation of what is meant by the strafbaarfeit. the lawmakers in the criminal code (kuhp) have used the word strafbaarfeit to refer to “criminal acts” but without giving an explanation of what is really meant by the word strafbaarfeit. according to wirjono prodjodikoro, he argued about criminal acts which are acts which can be subject to criminal penalties and the perpetrator can be said to be a subject of a criminal act (prodjodikoro 2011). the criminal act according to moejatno is an act that is prohibited by a legal rule accompanied by a threat (sanction) in the form of a certain crime for those who violate the prohibition in the legislation (moeljatno 2012). every criminal act contained in the criminal code (kuhp) generally has basic elements, namely subjective elements and objective elements. the subjective elements of a criminal act contained in the criminal code (kuhp) consist of: a. intentional and accidental (dolus or culpa) b. intent or voornemen on an experiment or poging as referred to in article 53 paragraph 1 of the criminal code. c. kinds of purposes or oogmerk such as those found for example in the crimes of theft, fraud, extortion, forgery and others; d. plan in advance or voorbedachte raad such as those contained in the crime of murder according to article 340 of the criminal code; and e. feelings of fear or vress such as those included in the formulation of criminal acts according to article 380 of the criminal code. while the objective element of a criminal offense contained in the criminal code (kuhp) includes: a. unlawful or wederrechtelijkheid; b. the quality of the perpetrator, for instance, “circumstances as a civil servant” in a position crime according to article 415 of the criminal code or “the condition of being a board or commissioner of a limited liability company” in crime under article 398 of the criminal code and c. causality, namely the relationship between something action as a cause with something reality as a result. violations of criminal acts in the excise sector are increasingly prevalent in indonesia, where one of them is against cigarette excise for the circulation of illegal cigarettes in a number of regions so that it can cause a lack of state income for the distribution of illegal cigarettes. general provisions in law number 39 of 2007 state that excise is a state levy imposed on certain goods that have the characteristics or characteristics set out in this law. based on the division of criminal law on the basis of the source of law no. 39 of 2007 concerning excise, it is a special criminal law that originates from legislation outside the codification which is 110 http://journal.unnes.ac.id/sju/index.php/jils cahyo baskoro indra maulana jils 4 (1) may 2019, 103-118 included in the group of laws and regulations not in the field of criminal law, but in which there are legal provisions criminal (chazawi 2002). pursuant to article 2 of law number 39 of 2007 concerning excise, it states that goods subject to excise are certain items which have characteristics or characteristics, namely as follows: a. the consumption needs to be controlled; b. the circulation needs to be monitored; c. its use can cause negative impacts on the community or the environment; or d. its use needs to impose state levies for justice and balance provisions regarding sanctions for the circulation of cigarettes that are not attached to the excise tape are regulated in article 54 of law number 11 of 1995 jo. law number 39 of 2007 concerning excise states that: everyone who offers, surrenders, sells, or provides for sale of excisable goods that are not packaged for retail sale or not clipped with excise tapes or not affixed with other excise payment as referred to in article 29 paragraph (1) shall be punished with the shortest imprisonment 1 (one) year and a maximum of 5 (five) years and/or criminal fine of at least 2 (two) times the excise value and at most 10 (ten) times the excise value that should be paid. this regulation becomes the legal basis for law enforcement relating to the circulation of illegal cigarettes. law enforcement policy by ppns directorate general of customs and excise on circulation of illegal cigarettes indonesia is a law state (rechstaat) as stated in the 1945 constitution, in an effort to deal with crime in the community by means of reasoning, in its operation using a criminal justice system with an integrated model (integrated criminal justice system) that is realized and applied in investigative power (by the investigating body/institution), prosecution authority (by the public prosecutor's agency/institution), judicial authority and decision/criminal decision (by the court) and the power of the implementation of a criminal decision (by the implementing agency/executing agency). the stage of investigation which is also the first stage in the criminal justice system, is a stage that absolutely plays a vital role in efforts to uphold law and crime prevention in society, because without the stages/process of investigation automatically the next stages in the criminal justice system are 111 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 the prosecution stage, the stage of adjudication/imposition of a criminal decision and the stage of implementation/criminal execution cannot be carried out. customs and excise officials who are authorized in criminal offenses of illegal cigarettes are customs and excise civil servant investigators (ppns) who are criminal investigators in customs and excise fields, certain civil servants officials within the directorate general of customs are specifically authorized as investigator as referred to in act number 8 of 1981 concerning criminal procedure law to conduct criminal investigations in the fields of customs and excise. civil servant investigators or ppns based on article 1 number 5 of government regulation number 43 of 2012 concerning procedures for the implementation of coordination, supervision and technical development of special police, investigation of civil servants, and forms of initiative security referred to as civil servants certain that based on the laws and regulations are appointed as investigators and have the authority to conduct criminal investigations within the scope of the law which become their respective legal basis. supervision and control is related to the high consumption of cigarettes in indonesia based on article 28h of the constitution of the republic of indonesia 1945 state which states that: everyone has the right to live in physical and spiritual prosperity, to live and get a good and healthy environment and the right to receive health services. then in law number 39 of 2009 concerning human rights in article 9 paragraph (3) states that: “everyone has the right to a good and healthy environment.” in law number 36 of 2009 concerning health, it states as follows: safeguarding the use of materials containing addictive substances is directed so as not to disturb and endanger the health of individuals, families, communities, and the environment (art. 113 par. 1) addictive substances as referred to in paragraph (1) include tobacco, products containing tobacco, solids, liquids and gases which are addictive in nature, which can cause harm to himself and/or the surrounding community (art. 113 par. 2). violations of criminal acts in the excise sector are increasingly prevalent in indonesia, where one of them is against cigarette excise for the circulation of illegal cigarettes in a number of regions so that it can cause a lack of state income for the distribution of illegal cigarettes. to guarantee the 112 http://journal.unnes.ac.id/sju/index.php/jils cahyo baskoro indra maulana jils 4 (1) may 2019, 103-118 repayment of excise owed on excise-affected goods produced, the excise law regulates sanctions for anyone including cigarette factory entrepreneurs who violate or do not comply with the provisions contained in law number 39 of 2007 and the implementing regulations. the application of sanctions in the excise law is carried out through two types of sanctions, namely administrative sanctions and criminal sanctions. as part of fiscal law, the excise law should prioritize administrative settlement as a recovery and fulfillment of tax authorities so that the settlement is sufficient by imposing sanctions in the form of fines. however, if the violation contains elements of crime such as forgery of excise ribbons, use of excise ribbons that are not their right, falsification of documents, selling bkc without regard to provisions that cause state losses, sealing damage, then such violations are subject to criminal sanctions. based on article 33 of law number 39 of 2007 concerning excise, the customs and excise officers are authorized to: a. take necessary actions on excisable goods and/or other goods related to excisable goods in the form of termination, inspection, enforcement and sealing to implement this law; b. take the necessary actions in the form of not serving orders for excise ribbons or other excise payment marks; and c. prevent excisable goods, other goods related to goods subject to excise, and/or transportation facilities. in carrying out the authority carried out by customs and excise officials can be equipped with firearms of the type and terms of use which are regulated by government regulation no. 21 of 1996 concerning enforcement in the field of customs. regarding the procedure for prosecuting the process of authority, it is regulated in article 2 of government regulation number 21 of 1996 concerning enforcement in customs which states to guarantee state rights and compliance with provisions of the law, customs and excise officials have the authority to carry out prosecution in customs sector as an effort to find and find an event that is suspected of being a violation of the provisions of the act, including: a. termination and inspection of transporter’s advice; b. examination of goods, buildings or other places, letters or documents relating to goods, or to people; c. enforcement of goods and means of transportation; and d. locking, sealing, and/or attaching the necessary safety marks to goods and transport facilities. 113 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 role of ppns of the directorate general of customs and excise in law enforcement of circulation of illegal cigarettes the rise of crimes against illegal acts of illegal cigarette trafficking that occur in society is strongly influenced by the low legal awareness which is one of the causes of the difficulty in realizing law enforcement in the community with a high level of crime against the illegal acts of illegal cigarette circulation. these conditions led to the development of globalization without a change in the legal system that gave rise to legal uncertainty, non-ideal law enforcement, human rights violations, and lawlessness in society. in the law enforcement system in indonesia, it is determined by all law enforcement officers, one of whom is law enforcement in the criminal act of illegal cigarette circulation, namely the civil servants official of the directorate general of customs and excise. the efforts of officials of civil servants of the directorate general of customs and excise in dealing with the circulation of illegal cigarettes can be carried out as follows: 1. inspection and supervision examination and supervision carried out by civil servants of the directorate general of customs and excise in every area of indonesia must be carried out to test the compliance of cigarette manufacturers in the indonesian region whose work operations stand out and their economic development is very good. the supervision system for excisable goods is intended to ensure the effectiveness of the implementation of legislation in the excise sector. in this case, the object of supervision in the excise sector is the production and distribution of goods subject to excise, from distributors to retailers, both for goods subject to excise that pay excise and those who obtain exemption facilities or not collected by excise. this is done by ppns of the directorate general of customs and excise so that reduced circulation of illegal cigarettes in small roadside shops, as well as against the circulation of plain cigarettes because plain cigarettes causes a decrease in excise tax on tobacco products. furthermore, ppns also organizing the efforts to supervise and prevent the circulation of the violations of this businessman, whether in the form of cigarettes, without the excise tape or the acquisition of rights not from the obligations of the employer itself or other forms of violations by issuing various policies. the field of supervision carried out by civil servants of the directorate general of customs can be found in law number 39 of 2007 concerning excise as follows: 114 http://journal.unnes.ac.id/sju/index.php/jils cahyo baskoro indra maulana jils 4 (1) may 2019, 103-118 a. excise documents and customs excise documents electronically. this is to anticipate technological developments, because it requires a legal certainty regarding the validity of data sent electronically which can be used as evidence by adding provisions that stipulate that excise documents and excise tax documents in the form of electronic data are legal evidence according to the law. b. the required distributor has a license in the form of a taxable goods entrepreneur’s identification number (nomor pokok pengusaha barang kena cukai, hereinafter called as nppbkc). with this provision, the intermediary institutions involved in distributing excisable goods are required to have nppbkc so that the scope of supervision of the circulation of goods subject to excise can be increased. c. enforcement in the form of termination, inspection, prevention and sealing can be carried out on other items related to. this provision provides a broader opportunity to gather sufficient initial evidence for the purpose of investigation if a violation of excise provisions is suspected. the inspection and supervision was carried out by the intelligence team of the civil servants of the directorate general of customs and excise in each region of indonesia to find out information about the criminal acts of illegal cigarette circulation without excise by directly plunging into the field, especially in cigarette factories and small shops on the edge roads and ports which are illegal cigarette entry routes without excise, therefore that in the case of inspection and supervision, it is expected that the distribution of illegal cigarettes can be found immediately before entering small markets. 2. dissemination of regulations concerning illegal cigarette the socialization of the regulations on illegal cigarette crime is carried out by civil servants of the directorate general of customs and excise in every area of indonesia to convey information related to regulations on criminal acts on illegal cigarette circulation to cigarette manufacturers by counseling. 3. guidance or coaching for cigarette companies coaching is carried out routinely and incidentally. routine guidance is a coaching carried out by civil servants of the directorate general of customs and excise carried out continuously to guide cigarette companies in the indonesian territory with the implementation of new regulations on socialization and efforts to implement them on the cigarette trade. regular coaching also has the benefit of knowing what are the obstacles for companies that commit illegal cigarette violations. in addition to regular coaching, there is also incidental coaching which is a coaching that was previously carried out suddenly or unscheduled. this guidance is carried out if there are some changes to the applicable regulations 115 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 and the latest regulations must be immediately disseminated to cigarette manufacturers in the indonesian territory, therefore there is no illegal cigarette abuse. 4. organizing information and complaints services civil servants of the directorate general of customs and excise in attempting to reduce or eradicate criminal acts of illegal cigarette circulation circulating in the community are increasing by opening information and complaints services at each office of the directorate general of customs and excise. information and complaint services should be carried out 24 hours in every office in the region in indonesia, information and complaints services are not only carried out in every office of the directorate general of customs and excise but also to make social media or other internet webs so as to facilitate the public to assist the directorate general of customs and excise in eradicating illegal cigarette circulation. 5. firmness of billing against illegal cigarette circulation actors billing is carried out by the state civil servant apparatus of the directorate general of customs and excise if there is a cigarette manufacturer who is accused of violating existing regulations. violations of the illegal circulation of cigarettes cause excise debts to reduce state revenues. conclusions at the end of this paper, the author underlines and confirms that law enforcement by the directorate general of customs and excise ppns on circulation of illegal cigarettes based on article 2 of government regulation no. 21 of 1996 concerning actions in customs, namely termination and inspection of transportation advice, inspection of goods, buildings or other places, letters or documents relating to goods, or to people, enforcement of goods and means of transportation; and locking, sealing, and / or attaching the necessary safety marks to the goods and means of transport. then, related to the efforts made by the ppns of the directorate general of customs and excise in dealing with the circulation of illegal cigarettes, it can be carried out on inspection and supervision carried out by civil servants of the directorate general of customs and excise, socialization of illegal cigarette crime regulations in order to convey information related to acts criminal acts on the circulation of illegal cigarettes to cigarette manufacturers by counseling, fostering tobacco companies, opening information and complaints services, collecting excise losses to the state against criminal acts of illegal cigarette distribution. i also recommend that the directorate general of customs and excise and the office of the relevant agencies in the context of effective supervision 116 http://journal.unnes.ac.id/sju/index.php/jils cahyo baskoro indra maulana jils 4 (1) may 2019, 103-118 and law enforcement of illegal cigarette circulation be expected to be more observant in seeing the various factors in inhibiting the effectiveness of work, so that the right solutions can be found to overcome these problems. the search for solutions to these problems is expected to be carried out together with the offices of the relevant agencies. references asmara, c. g. 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est team accipere quam exiorquere” ― to accept anything as a reward for doing justice is rather estorting than accepting attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23932974a625 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare 119 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 volume 4 issue 01 may 2019 jils 4 (1) 2019, pp. 119-128 issn (print) 2548-1584 issn (online) 2548-1592 fostering as an alternative sanction for juveniles in the perspective of child protection in indonesia ratri novita erdianti, sholahuddin al-fatih ratri novita erdianti, sholahuddin al-fatih faculty of law, universitas muhammadiyah malang jl. raya tlogomas no. 246 malang  ni_ratry@yahoo.com, sholahuddin.alfath@gmail.com table of contents introduction ………………………………………………….….. 120 fostering as an alternative sanction for juveniles …………………………………………………….... 122 the urgency of fostering as an alternative sanction for juveniles in indonesia ………………….. 126 conclusion ………………………………………………………… 127 references …………………………………………………………. 127 10.15294/jils.v4i01.29315 copyright © 2019 by author(s) this work is licensed under a creative commons attributionsharealike 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. jils (journal of indonesian legal studies) 120 http://journal.unnes.ac.id/sju/index.php/jils ratri n. erdianti, sholahuddin al-fatih jils 4 (1) may 2019, 119-128 article info abstract submitted on february 2019 approved on april 2019 published on may 2019 crimes committed by juveniles today continue to grow, as well as various law enforcement approaches. juveniles as legal subjects have special attention not only in matters of children’s rights but also in the punishment of children. various crimes committed by juveniles occur a lot and lead to no longer what is called juvenile delinquency, but a serious crime. the child protection act and the child criminal justice system law explicitly regulate the protection of children’s rights in the context of human rights. fostering sanctions for juveniles are one of the ways that are encouraged compared to providing severe criminal sanctions, while here another criminal law is a doubleedged sword and ultimum remedium. this paper examines efforts to guide children as an alternative sanction in juvenile criminal law. studies in this paper include studies of child criminal law, criminal law, human rights, and the law on child protection. keywords: fostering, juvenile criminal law, juvenile delinquency, child protection, minors, criminal sanction how to cite (chicago manual style) erdianti, ratri novita & al-fatih, sholahuddin. “fostering as an alternative sanction for juveniles in the perspective of child protection in indonesia”, jils (journal of indonesian legal studies), 4 (1), 2019: 119-128. introduction many cases of criminal acts experienced by children occur in indonesia, this urges law enforcement officials to make efforts to deal with crimes against children. however, if seen at this time what is also a concern of the general public, not a few cases of criminal acts that occur in children are actually carried out by children as well. this adds to the community's concern that it turns out that at a very young age, it is possible for children to become perpetrators of criminal acts. various forms of criminal acts can be carried out by children, but in this case the author sees that the criminal acts committed by children are actually different from criminal acts committed by adults. childhood is a prone time to act, because in childhood children are very vulnerable to various desires to do something, for example crossing walls, ditching, throwing stones and other actions. 121 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 regarding juvenile delinquency, the author argues that juvenile delinquency can basically be divided into two forms, namely pure juvenile delinquency, where juvenile delinquency is juvenile delinquency that does not intersect with criminal law, but actions taken are not commendable such as skipping school. the second delinquency is delinquency that has been included in a crime or commonly called delinquent, this second form of mischief which then requires legal treatment because it has violated criminal law. law no. 11 of 2012 concerning the juvenile criminal justice system (sistem peradilan pidana anak, hereinafter called as sppa law), affirms that with regard to children confronting the law are children in conflict with the law, children who are victims of criminal acts, and children who are witnesses of criminal acts. in connection with a child who commits a crime, he is referred to as a child in conflict with the law. in sppa, what is meant by a child who has a conflict with the law, hereinafter referred to as a child, is a child who is 12 (twelve) years old, but who is not 18 (eighteen) years old who is suspected of committing a criminal act (pramukti & fuady 2018; sutedjo & melani 2013). in handling cases of children as perpetrators of criminal acts, the criminal law used is to use the special procedural law of children stipulated in law no. 11 of 2012 which has replaced law no. 3 of 1997 concerning juvenile court. in the judicial process, it turns out that prison sentences are still often handed down by judges in child cases, the authors see from sri sutatiek’s quote in his book, which states that the 2004 human rights research and development agency concluded that the profile of children in conflict with law in indonesia is more many were sentenced to imprisonment rather than actions, so systematized naughty children underwent fostering at the children's correctional institution (sutatiek 2013). the results of the study also found that the inadequate atmosphere and facilities within the penitentiary center encouraged children to be more psychologically and mentally depressed and isolated from their original environment, so that the inadequate facilities would allow the convict to fulfill their own needs (sutatiek 2013; sutedjo & melani 2013). another thing that is feared by the imposition of imprisonment is prisonation. it is important to know that prisonization (imprisonment) is socialization between prisoners in prisons that trigger convicts to learn other forms of crime. the risk of prisonization has increased, given the guidance system in correctional institutions in indonesia according to wirjono projodikoro, usually several prisoners are gathered in a room, including placement in their beds and in doing work (sutatiek 2013). another thing that is also the impact of imprisonment is stigmatization that arises, the label of former prisoners will be a detrimental effect of imprisonment received by children in conflict with the law. thus it will damage the future of children because the community will reject the presence 122 http://journal.unnes.ac.id/sju/index.php/jils ratri n. erdianti, sholahuddin al-fatih jils 4 (1) may 2019, 119-128 of former child prisoners, so that children will become isolated from the community (wangi 2013; yunus 2013; arifin 2018). therefore, imprisonment is expected to be the final criminal imposition of children in conflict with the law, because of the bad impact of imprisonment on child development. children in conflict are expected to only get jail terms if indeed the condition of the child is indeed dangerous for the community and must be secured. some criminal alternatives can be imposed on children in conflict with the law, one of which is fostering within the institution. with regard to the type of criminal offense, the convict must undergo a series of coaching carried out by the institution in which the institution can be a job training institution or a private or government-led fostering institution. related to that, the authors see that this form of crime is very good given to children who commit criminal acts because it will avoid the negative impact of imprisonment. based on the above background, there are two main things discussed in this paper, which relate to how the criminal relevance of guidance in institutions for children who commit criminal acts with the purpose of punishment in indonesia; and the urgency of the existence of a fostering institution for children undergoing punishment within institutions in the juvenile justice system in indonesia. fostering as an alternative sanction for juveniles the rise of criminal acts that occur in the community in indonesia has become a constant work for law enforcement officers in indonesia. various ways and efforts are made in order to overcome and prevent and minimize various criminal acts that occur. it is also felt in tackling various crimes related to children. in relation to criminal acts, children are parties who are very vulnerable to being victims and perpetrators of criminal acts. in the event that a child becomes a criminal offender, various types of criminal offenses are currently very vulnerable for children. this is triggered by various backgrounds which in the end caused the child to commit a criminal act. as a consequence of a criminal act committed, every child who commits a crime has a criminal responsibility that must be experienced. law no. 11 of 2012 concerning the juvenile criminal justice system is explained that the child who is a criminal offender is referred to as a child in conflict with the law, hereinafter referred to as child is a child who is 12 (twelve) years old, but not yet 18 (eighteen) years suspected committing a crime. with this arrangement, it was explained that basically children who could be held responsible for criminal acts ranged from 12 years to 18 years. 123 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 if a child who has not reached 12 years is suspected of committing a crime, the arrangement is regulated in article 21 sppa law which explains that in the event that the child is not 12 (twelve) years of committing or suspected of committing a crime, investigator, community advisor and professional social worker take the decision to hand it back to the parent / guardian; or b. include in education, coaching and mentoring programs in government agencies or institute for organizing social welfare (lembaga penyelenggaraan kesejahteraan sosial, hereinafter called as lpks) in agencies that handle the field of social welfare, both at the central and regional levels, no later than 6 (six) months (wangi 2013; yunus 2013; arifin 2018). from the article explained that the criminal responsibility of a child starts at the age of 12 years, but in the process of detention or conviction of children, it can only be done to children who are 14 years old. the basis for criminal acts for children who are not yet 14 years old can be seen in article 69 paragraph 2 which explains that children who are not yet 14 years old can only be sanctioned by action. this suggests that only children aged 14 years can be subjected to criminal punishment by a judge if they commit a crime. in criminalizing children in indonesia, sppa law has regulated the types of crimes for children. as for the form of crime in article 71 sppa law, it is explained that the criminal form for children is an additional principal and criminal penalty, namely: (1) the principal punishment for the child consists of: a. criminal warning b. criminal terms: 1) coaching or fostering outside the institution; 2) community service; or 3) supervision c. work training d. coaching or fostering in institutions; and e. imprisonment (2) the additional punishment consist of: a. deprivation of profits derived from criminal acts; orr b. fulfillment of customary obligations. (3) if the material law is threatened with cumulative crimes in the form of imprisonment and fines, criminal penalties will be replaced with job training. (4) crimes imposed on children are prohibited from violating the dignity of the child. (5) further provisions regarding the form and procedure for implementing criminal acts as referred to in paragraph (1), paragraph (2), and paragraph (3) shall be regulated by government regulation. with the regulation of various forms of criminality that can be imposed by judges in handling cases of child cases, then if seen in this case the judge should still pay attention to the principles of legal protection for children 124 http://journal.unnes.ac.id/sju/index.php/jils ratri n. erdianti, sholahuddin al-fatih jils 4 (1) may 2019, 119-128 regulated in sppa law. it was explained in sppa law that criminal deprivation of liberty is the last resort in handling child cases. basically, with the principle that deprivation of liberty is the last resort, this explains that as much as possible imprisonment is not imposed on children who commit criminal acts. as is known that a little more than the process of imprisonment of a child prison that is carried out will have a negative impact on the child in the process of growth and development. therefore in imposing criminal sanctions, the judge has other criminal choices that still pay attention to the aspects of the best interests of the child. one of them is criminal guidance in the institution. imprisonment for children as part of the ultimum remidium, children are sentenced to criminal sentences in the child correctional institution (lembaga pemasyarakatan khusus anak, lpka) if the circumstances and actions of children will endanger the community. imprisonment sentences against children are only used as a last resort. this type of crime is a fostering within an institution carried out at a job training place or a training institution organized by both the government and the private sector. criminal guidance in the institution is dropped if the circumstances and actions of children do not endanger the community (makaro 2004). in relation to the choice of punishment for children in conflict with the law, in this case the choice of criminal punishment must also be in accordance with the objectives of punishment for the child who should be wanted. maidin explained in his book that the criminal justice system has a dual functional dimension, on the one hand it functions as a means of the community to detain and control crime containment, on the other hand the criminal justice system also functions for secondary prevention, namely trying to reduce crime among those who have committed criminal acts and those who intend to commit crimes, through the process of detection, punishment and criminal conduct (gultom 2014). whereas muladi, as quoted by gultom (2014), explains that the juvenile justice system has the aim of: 1. resocialization and rehabilitation of criminal offenders 2. eradication of crime 3. to achieve social welfare in line with what was conveyed by muladi, juvenile criminal justice, was held with attention to child welfare (gultom 2014). child welfare is important because: 1. children are the potential and successors of the ideals of the nation whose foundation has been laid by the previous generation; 2. so that every child is able to assume these responsibilities, he needs to have the opportunity to grow, develop naturally; 3. whereas in the community there are children who experience obstacles to spiritual, physical, social and economic well-being; 4. the child has not been able to maintain himself; 125 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 5. that removing these obstacles will only be implemented and obtained if the child welfare business is guaranteed (wahyono & rahayu 1993). the philosophy of child criminal justice is to realize child welfare, therefore law is the basis, guidelines and means of achieving prosperity and legal certainty in order to guarantee the treatment and actions taken; especially for children (wahyono & rahayu 1993). in the legal process involving children as subject of offense, do not ignore their future and still uphold the authority of the law for justice. according to the beijing rule in rule 5.1 it is explained that in the juvenile justice system will prioritize child welfare and will ensure that any reaction to child offenders will always be commensurate with the circumstances of offenders and law violations (prakoso 2018). it is stated that “the juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence” (the beijing rules 1985). whereas in the convention on the rights of the child 1990, the purpose of the justice system is contained in article 3, stated that: 1. in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. states parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. states parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. according to un resolution 45/113 dated december 14, 1990, the united nations of protection of juvenile deprived of liberty, the court system for children must uphold children's rights and safety and promote physical and mental well-being in children and prison sentences must be used as a goal last one. whereas in law no. 11 of 2012, the aim of the juvenile criminal justice system is to be able to realize a judiciary that truly guarantees the protection of the best interests of children facing the law as the next generation. 126 http://journal.unnes.ac.id/sju/index.php/jils ratri n. erdianti, sholahuddin al-fatih jils 4 (1) may 2019, 119-128 in line with the objectives of the criminal justice system for children described above, in criminal law the purpose of punishment is a matter that must be considered by the judge in imposing criminal charges on perpetrators of criminal offenses, including children who commit criminal offenses. in the purpose of punishment, criminal prosecution is directed to the process of fostering the perpetrators of criminal acts, as well as preventing the perpetrators of criminal acts from repeating criminal acts again. the convicted sentence is also able to prepare the criminal offender to return to the community while still providing a crime that does not have a negative impact. whereas we know that if someone accepts the criminal form of deprivation of independence, the criminal process according to the author has a negative impact on the perpetrators, especially children. the urgency of fostering as an alternative sanction for juveniles in indonesia the imposition of criminal decisions in the form of fostering children in the institution has relevance to the purpose of punishment which will improve the child who has committed a criminal offense but the child is still given responsibility for the criminal acts that have been committed. the criminal choice for criminal offenders is a matter of considerable importance. the truth is that criminal prosecution of criminal offenders should have values in accordance with the objectives of punishment that are to be achieved. likewise with the judicial process for children who commit criminal acts, criminal choice is very important to note considering that children who commit crimes have a future that must also be considered (wangi 2013; yunus 2013; arifin 2018). one of the criminal sanctions that recognized as an alternative sanction for a child who commits a crime other than a criminal offense is criminal guidance or fostering in the institution. this type of crime is regulated in article 80 which explains that: 1) fostering within the institution is carried out at work training sites or coaching institutions organized by both the government and the private sector. 2) fostering in the institution is dropped if the child's condition and actions do not endanger the community. 3) fostering in institutions is carried out in a minimum of 3 (three) months and no later than 24 (twenty four) months. referring to article 80, that criminal guidance in the institution can be imposed on the child who is a criminal offender. according to the author, this criminal choice is an alternative to other basic forms of crime other than criminal matters other than imprisonment that need to be optimized. this is 127 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 because this form of crime is able to cover up the shortcomings of criminal deprivation of freedom against children. with the judge imposing criminal decisions on coaching within the institution, this is done by providing guidance conducted at the job training place. or the convicted child gets guidance at a guiding institution that has been appointed by the judge but not in the lpka. therefore, the impact of deprivation of independence will be avoided by children. so, with the existence of criminal guidance in the institution, this will affect the existence of the institution in question. in article 80 it is explained that the training is carried out at the place of job training and the guiding institution under the government or the private sector is appointed by the judge. in this case the author argues that in sppa law it does not clearly regulate with regard to the coaching institution. in the implementing regulations sppa law also does not regulate the institution in the form of whether the institution is an educational institution, social institution, or other form of institution. so the author feels that this has become a shortage of management arrangements in the institution. to be able to optimize the form of guidance within the institution, the existence of the institution is clearly needed. therefore, the judge in deciding to provide guidance to the child will have a reference regarding which institution fulfills the intended punishment. conclusion in the current era, children can become perpetrators of crimes. as a form of legal protection for children who are perpetrators of criminal acts, then based on clarification and the results of the research of the author, it is necessary to apply criminal guidance in specific institutions formed by the government. this is important as an alternative form of punishment for child offenders to guarantee and provide legal protection for them as children. specifically, the authors provide recommendations for the government, so that they will immediately formulate formal and material rules relating to the format of criminal guidance in institutions for offenders. institutions that are used as a means of criminal guidance can be a type of social institution or educational institution that is adapted to the pattern of child development. thus, the effect of deterrence and development of children's competencies will be obtained at the same time. 128 http://journal.unnes.ac.id/sju/index.php/jils ratri n. erdianti, sholahuddin al-fatih jils 4 (1) may 2019, 119-128 references arifin, mokhammad. “model of implementation of juvenile criminal system to the criminal offender (educative perspective on institute for special development children lpka kutoarjo, central java, indonesia)”. journal of indonesian legal studies 3 (2), 2018: 253-72. google scholar crossref convention on the rights of the child, 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this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23948c7e206d • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare jils (journal of indonesian legal studies) volume 6(2) 2021 353 available online at http://journal.unnes.ac.id/sju/index.php/jils research article legal protection policy for minority groups (evidence from aboge group in purbalingga indonesia) ayon diniyanto department of constitutional law state islamic institute of pekalongan, indonesia  ayondiniyanto24@gmail.com submitted: july 11, 2021 revised: october 19, 2021 accepted: oct 30, 2021 abstract the aboge islamic community in onje village is part of a community whose existence must be protected. without protection, the aboge islamic community in onje village has the potential to lose its existence. this study found three hypotheses of problems faced by the aboge islamic community in onje village. the three problems include conditional problems, empirical conditions, and sociological conditions. the formulation of the research problem is how to protect the aboge islamic community in onje village? and is there a need to indonesian legal thoughts amid various world legal thoughts published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 2, november 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-3954-7893 354 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils protect the aboge islamic community in onje village? the research method used in this research is to use a qualitative research approach. this type of research is juridical and sociological. this study succeeded in finding data related to efforts to protect the aboge islamic community in onje village. the protection efforts are carried out from within and from outside. then the researchers also found data related to whether or not a protection policy was needed for the aboge islamic community in onje village. the researcher analyzed that the data in the field was found to be necessary and unnecessary. then the researcher stated that there needs to be a legal policy to protect the existence of the aboge islamic community in onje village. the conclusions in this study are to answer two problem formulations. keywords: protection; aboge; onje; policy; minorty group http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 355 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract …………………………………………………….…. 353 table of contents ……………………………..…...….…... 355 introduction ………………………………….…………….. 356 identifications of problems ………………………… 359 previous research …………………………………………. 363 efforts to protect the existence of the aboge islamic community in onje village ………………… 367 i. efforts to protect from within the aboge islamic community in onje village …….……… 367 ii. external protection efforts against the aboge islamic community in onje village ….. 370 is there a need to protect the aboge islamic community in onje village? …………………………… 372 conclusion …………………………..………………………. 381 references ………………………………………………….… 382 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. how to cite: diniyanto, a. (2021). legal protection policy for minority groups (evidence from aboge group in purbalingga indonesia). jils (journal of indonesian legal studies), 6(2), 353-388. https://doi.org/10.15294/jils.v6i2.49935 http://journal.unnes.ac.id/sju/index.php/jils https://journal.unnes.ac.id/sju/index.php/jils/article/view/49935 356 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction state indonesia is a country that has the motto bhineka tunggal ika (different but still one). bhineka tunggal ika was actually born long before indonesia's independence. no wonder then bhineka tunggal ika is united with the indonesian nation. these conditions make indonesia a country that has a diverse society. the diversity in question is the various ethnic groups, religions, races, and groups that exist in the state of indonesia. this diversity is also what in fact supports the indonesian state. finally, the diversity that exists in indonesia must be consistently accepted and recognized. interestingly, the diversity possessed by the state of indonesia can be used as social capital in responding to the challenges and developments of the times. the challenges and developments of the times to come are certainly very complex. the current of globalization which is part of the challenges and developments of the times can be part of being involved in eroding the cultural values of the nation and also negating and nullifying the diversity that already exists and is rooted in indonesia.1 1 aim abdulkarim et al., development of a unity in diversity based pancasila education text book for indonesian universities, 13 int. j. instr. 371–386 (2020); yudi latif, identitas keindonesiaan dan aktualisasi pancasila bagi generasi millenial di era digital, 33 j. kaji. lemhanas ri 5–19 (2018); md mahfud, mengokohkan ideologi pancasila menyongsong generasi z-alpha, in kuliah umum di universitas soegiyopranoto, 1–14 (2018); christiany suwartono & eko a meinarno, value orientation scale: the validation of the pancasila scale, 1 j. pengukuran psikol. dan pendidik. indones. 175–183 (2012); gina lestari, bhinnekha tunggal ika: khasanah multikultural indonesia di tengah kehidupan sara, 28 j. pendidik. pancasila dan kewarganegaraan 31–37, 31 (2015); budi annisa sidi, unity and diversity : national identity and multiculturalism in indonesia, 2019. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 357 available online at http://journal.unnes.ac.id/sju/index.php/jils therefore, efforts or energy are needed in order to care for and preserve diversity in indonesia. these efforts and energy can be said to be the responsibility of all indonesian citizens wherever they are and at any time. of course, we all know that efforts and energy in caring for diversity in indonesia is not an easy matter. there is a need for tolerance and strong unity from all indonesian people to care for and preserve diversity in the state of indonesia. the flow of globalization and modernization is growing so fast. as a result, the challenges faced by the indonesian people in responding to globalization and modernization are not easy. moreover, as part of the world community, it is definitely impossible to avoid the currents of globalization and modernity. once we avoid it, we will be drowned and marginalized by the times. therefore, the flow of globalization and modernization which is a necessity we must accept and respond to. this acceptance and response must be based on values and character which are part of our fundamental identity. the indonesian nation has values and character as an identity in accepting and responding to the flow of globalization and modernity.2 the values and characters in question are tolerance and unity. these values must be the basis and even capital in the face of 2 robby darwis nasution, pengaruh modernisasi dan globalisasi terhadap perubahan sosial budaya di indonesia, 21 j. penelit. komun. dan opini publik 1–14, 2 (2017); mulyono mulyono, the problems of modernity and identity in globalization era, 1 j. marit. stud. natl. integr. 106–111, 106 (2017); giovanni e. reyes, four main theories of development: modernization, dependency, word-system, and globalization, 04 nomades. rev. crítica ciencias soc. y jurídicas (2001); l. huneault, m. -è mathieu & a. tremblay, globalization and modernization: an obesogenic combination, 12 obes. rev. 64–72, 65–67 (2011); ernesto castañeda & amber shemesh, overselling globalization: the misleading conflation of economic globalization and immigration, and the subsequent backlash, 9 soc. sci. 1–31, 3–5 (2020); sri widayati & eka cahya maulidiyah, religious tolerance in indonesia, in 2nd international conference on education innovation (icei 2018) religious 685–688 (2018). http://journal.unnes.ac.id/sju/index.php/jils 358 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils globalization and modernization. it is not easy to make these values and characters as the basis and capital, especially in the midst of an increasingly free and competitive era. therefore, there must first be protection of diversity which includes tolerance and unity. in fact, as mentioned earlier, indonesia has a diversity of ethnicities, religions, races, and groups. there are six religions recognized in indonesia. then there are also many sects of beliefs and religious communities in indonesia. there are many and varied. the diversity of religions, beliefs, and religious communities must be protected and preserved. this is in line with pancasila as the basis of the state and the 1945 constitution of the republic of indonesia as the constitution. the basis of the state and the indonesian constitution provide guarantees for maintaining tolerance and unity in the state of indonesia.3 the islamic community of alif rebo wage (aboge) is one of the communities that must receive protection and preservation. this is done in order to protect and preserve diversity in the state of 3 yudi latif, the religiosity, nationality, and sociality of pancasila: toward pancasila through soekarno’s way, 25 stud. islam. 207–245 (2018); ramli abdul wahid, aliran minoritas dalam islam di indonesia, 1 j. contemp. islam muslim soc. 141, 142 (2017); i wayan watra, agama-agama dalam pancasila di indonesia (perspektif filsafat agama) 2 (ida bagus putu eka suadnyana ed., 2020); firman parlindungan, irfan rifai & afida safriani, the representation of indonesian cultural diversity in middle school english textbooks, 8 indones. j. appl. linguist. 289–302, 290 (2018); wimmy haliim, harmony and tolerance as a tengger identity: reflections for indonesian identity and unity degradation, 1 int. j. soc. sci. 1–9, 1–2 (2018); ahmad suradi, john kenedi & buyung surahman, religious tolerance in multicultural communities: towards a comprehensive approach in handling social conflict, 4 udayana j. law cult. 229–245, 230 (2020); habib zarbaliyev, multiculturalism in globalization era: history and challenge for indonesia, 13 int. j. sci. stud. 1–16, 7–8 (2017); diane butler, peace and harmony in the world based on pancasila and bhinneka tunggal ika (unity in diversity), 15 j. multikultural multireligius 33–40, 34–37 (2016); philipus tule, religious conflicts and a culture of tolerance: paving the way for reconciliation in indonesia, in prosiding simposium internasional jurnal antropologi indonesia i makassar 518–528 (2000). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 359 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesia. in onje village, mrebet district, purbalingga regency, based on the researchers' initial observations. it was found that there was a quantitative decline in the existence of the aboge islamic community. this decline can be seen in various ways. for example, there is a decrease in the number of followers of the aboge islamic community in one family. many people break away from the aboge islamic community in one family. in some of the families that the researchers observed, many children were found out of the aboge islamic community. not only children, parents who have long been the aboge islamic community also came out. identifications of problems the observations made by the researchers found a hypothesis about the factors that caused the decline in the number of the aboge islamic community. the hypothesized factors include (1) the occurrence of assimilation which negates the old culture; (2) the impact of globalization and modernization; and (3) the presence of an increasingly advanced level of education in the aboge islamic community. these factors can be said to threaten the existence of the aboge islamic community. the stronger internalization of these factors to the aboge islamic community will make the existence of the aboge islamic community weaker. if mapped, there are at least three problems with the existence of the aboge islamic community. these three problems are three problems seen from normative, empirical, and sociological conditions. the normative condition in this case is related to the term or definition and position of the aboge islamic community. as for the empirical conditions, namely the existence of the aboge islamic http://journal.unnes.ac.id/sju/index.php/jils 360 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils community. then regarding the sociological conditions, namely regarding the culture or rituals of the aboge islamic community. the first problem of the aboge islamic community concerns normative matters, namely terms or definitions and positions. normatively it can be said that the term or definition of the aboge islamic community is a group of people who are muslim by carrying out islamic law through the aboge tradition. as mentioned earlier, aboge stands for alif rebo wage. aboge itself is a calendar counting tradition based on a blend of islamic and javanese calendars. aboge in onje village was introduced by a guardian by the name of raden sayid kuning to be precise since the 14th century ad 4. the aboge islamic community in carrying out islamic law is guided by the qur'an and hadith. if we look more deeply at the aboge islamic community in onje village, we do not find any significant differences in the implementation of islamic law with the majority islamic community in indonesia, such as nahdlatul ulama (nu). even according to kiai sudi maksudi, who is the aboge imam in onje village and the imam of the raden sayid kuning mosque in onje village, the practices carried out by the aboge islamic community in onje village are the same as those of the nu organization. there is a difference but only in the calculation of the beginning of the month or islamic holidays.5 this is different from the social facts that we find. many people still think that aboge is a separate religion. many say that aboge is separated from the values in the teachings of islam. some even state that the aboge existed before religions entered indonesia 6. then in 4 kompas.com, islam aboge, ajaran warisan raden rasid sayid kuning, kompas.com (2011). 5 interview with kiai sudi maksudi on august 28, 2021. 6 moch. ichiyak ulumuddin, praktik keagaman aliran kejawen aboge di antara agama resmi dan negara, 6 reli. j. stud. agama-agama 91–113, 5 (2016); http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 361 available online at http://journal.unnes.ac.id/sju/index.php/jils the initial observations made by researchers. it was found that there were people who thought that the traditions in the aboge islamic community were no longer relevant to be practiced. this assessment certainly has an impact on the existence of the aboge islamic community, especially in onje village. the second problem is related to empirical conditions. the empirical condition in this case relates to the number of the aboge islamic community. until now, researchers have not found definite data related to the number of aboge islamic community in onje village. likewise, with kiai sudi maksudi, who also does not know for sure the number of followers of the aboge islamic community in onje village. this is certainly a problem in itself, considering the number or quantity greatly affects the existence of a community. the minimum indicator of the strength of existence can be seen from the number. the greater the number of the aboge islamic community, at least the stronger the existence of the aboge islamic community. then in terms of government administration, there are allegations that the onje village government has not clearly collected data on the number of the aboge islamic community through government administration. this means that data collection on the number of the aboge islamic community in onje village is necessary and must be done. this is to find out the number and measure the existence of the aboge islamic community. if we look at the data in the field, it can be described as follows. the population in onje village based on 2018 statistical data is 4,350 people. the number is divided into the number of men as many as 2,163 people. the number of women is 2,187 people.7 then the statistical data shows that the majority of the sulaiman, islam aboge: pelestarian nilai-nilai lama di tengah perubahan sosial, 20 j. “analisa” 1–12, 2 (2013). 7 badan pusat statistik kabupaten purbalingga, kecamatan mrebet dalam angka 2018 17 (2018). http://journal.unnes.ac.id/sju/index.php/jils 362 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils population in onje village is muslim. the population of onje village who is muslim is 4,347 people. then the number of people who are protestant christians are 3 people. this can be seen in table 1 and table 2.8 table 1. onje villagers gender amount male female 2.163 2.187 4350 table 2. religion of the onje villagers religion islam catholic protestant hindu buddhism confucian faith 4.347 3 the third problem concerns the sociological conditions that exist in the aboge islamic community. there are three sociological factors that become problems and threaten the existence of the aboge islamic community in onje village. the three factors are (1) the occurrence of assimilation which negates the old culture; (2) the impact of globalization and modernization; and (3) the presence of an increasingly advanced level of education in the aboge islamic community. the normative, empirical, and sociological problems that have been described previously can be said to have great potential to threaten the existence of the aboge islamic community in onje village. there needs to be efforts and energy in maintaining the sustainability and existence of the aboge islamic community as part of maintaining diversity in indonesia. the question is how to protect the existence of the aboge islamic community in onje village? is there a need to protect the aboge islamic community in onje village? 8 purbalingga, supra note 7. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 363 available online at http://journal.unnes.ac.id/sju/index.php/jils previous research before answering the formulation of the problem, it is necessary to state beforehand related to previous research that is relevant to the topic of this research. a review of previous research needs to be done to determine the originality of this research. first, research from sulaiman (2013) with the title “islam aboge: pelestarian nilai-nilai lama di tengah perubahan sosial”. sulaiman's research can be said to be quite comprehensive research concerning the aboge. there are at least three studies concerning the aboge found in solomon's research. the three studies include (1) teachings and developments in aboge islam; (2) a change in values in the aboge islamic community; and (3) the adaptation strategy carried out by the aboge community in order to preserve the values held by the aboge especially at this time (in the midst of change). sulaiman (2013) further in his research states that there are at least two strategies undertaken by aboge to adapt and preserve aboge's values in the midst of change. the two strategies are (1) a conservative adaptation strategy; and (2) resistance adaptation strategies. conservative adaptation strategy is an adaptation strategy using the kinship system, the attachment system, and the obedience system. resistance adaptation strategy is an adaptation strategy by using internalization of values and tolerance for changes that occur 9. the research conducted by sulaiman (2013) can be said to be quite complete and interesting. sulaiman (2013) is very deep in studying related to aboge, especially regarding aboge's strategy in maintaining values in the midst of social change. sulaiman (2013) in his research succeeded in conducting an exploration of the conditions that occurred in the aboge community. sulaiman (2013) also succeeded in exploiting the strategies carried out by the aboge 9 sulaiman, supra note 6. http://journal.unnes.ac.id/sju/index.php/jils 364 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils community in order to survive and preserve aboge values in the midst of social change. the second research from m. alfatih husain (2015) which examines related to the title “komunitas islam aboge (penerapan antara sistem kalender dengan aktifitas sosial keagamaan di desa onje kecamatan mrebet kabupaten purbalingga)”. research from m. alfatih husain (2015) examines more related to the rituals of the aboge islamic community in onje village. research conducted by m. alfatih husain (2015) has not been included in studies related to the decline in the existence of the aboge islamic community in onje village. research from m. alfatih husain (2015) does not reveal anything related to the protection of the aboge islamic community in onje village. briefly, research by m. alfatih husain (2015) examines how to implement and implement the aboge calendar system. then the study conducted by m. alfatih husain (2015) is also related to the rituals carried out by the aboge islamic community in onje village 10. the third research is from awaliyyah mudhaffarah (2017) entitled “refleksi budaya komunitas islam aboge cikakak pada masjid saka tunggal banyumas”. research conducted by awaliyyah mudhaffarah (2017) at least concludes that there is a relationship between the aboge islamic community in cikakak village and the saka tunggal mosque. research from awalliyah mudhaffarah at least concludes that the saka tunggal mosque has a major contribution to the sustainability and sustainability of the aboge islamic community in cikakak village. the saka tunggal mosque, located in cikakak village, banyumas regency, is the center for the activities of the aboge islamic community in cikakak village. no wonder then 10 m. alfatih husain, komunitas islam aboge (penerapan antara sistem kalender dengan aktifitas sosial keagamaan di desa onje kecamatan mrebet kabupaten purbalingga), 2015. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 365 available online at http://journal.unnes.ac.id/sju/index.php/jils that masijd saka tunggal can be said to be a buffer and preservation of the rituals of the aboge islamic community in cikakak village 11. the research conducted by awaliyyah mudhaffarah is interesting and relevant to the conditions that occur in the aboge islamic community in onje village. please note that the aboge islamic community also has a relationship with the raden sayyid kuning mosque in onje village. the raden sayyid kuning mosque is also a center for activities and rituals for the aboge islamic community in onje village. no wonder the raden sayyid kuning mosque is often said to be a buffer for the activities of the aboge islamic community in onje village. the question is whether the raden sayyid kuning mosque is able to effectively protect and preserve the values that exist in the aboge islamic community in onje village? this research is field research in which researchers go directly to the field to seek and find primary data. this study uses a qualitative research approach. researchers take a qualitative approach, namely by photographing social phenomena that exist in the community. the results of the photo shoot were then narrated by the researchers in descriptive form. the materials that researchers obtained from the results of photographing social phenomena were used as material to draw conclusions.12 researchers in this case managed to photograph the social symptoms that exist in the aboge islamic community in onje village, then the researchers analyzed and drew conclusions. there are three types of legal research, namely normative, empirical, 11 awaliyyah mudhaffarah, refleksi budaya komunitas islam aboge cikakak pada masjid saka tunggal banyumas, in seminar ikatan peneliti lingkungan binaan indonesia (iplbi) 145–150 (2017). 12 hardani et al., metode penelitian kualitatif & kuantitatif 277–278 (2020). http://journal.unnes.ac.id/sju/index.php/jils 366 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils and social legal.13 the research conducted by the researcher is using socio legal research. the researcher examines related to the juridical and sociological aspects.14 the legal aspects studied are related to the juridical provisions relating to the aboge islamic community in onje village. the sociological aspects studied are related to social conditions in the aboge islamic community in onje village. the research location was conducted in onje village, mrebet district, purbalingga regency. the data sources of this study used primary, secondary, and tertiary data sources. data collection techniques in this study used interviews, observations, and literature studies. the validity of this research data using triangulation 15. data analysis using interactive models.16 efforts to protect the existence of the aboge islamic community in onje village the aboge islamic community in onje village is part of a minority group. not many in indonesia found the existence of the islamic 13 ayon diniyanto, reformasi hukum tanah desa: redefinisi dan penguatan kedudukan, 8 j. rechts vinding media pembin. huk. nas. 351–365 (2019). 14 muhammad helmy hakim, pergeseran orientasi penelitian hukum: dari doktrinal ke sosio-legal, 16 syariah j. huk. dan pemikir. 105–114, 105–108 (2017); muhamad muhdar, penelitian doctrinal dan non-doctrinal: pendekatan aplikatif dalam penelitian hukum 12 (2019); kornelius benuf & muhamad azhar, metodologi penelitian hukum sebagai instrumen mengurai permasalahan hukum kontemporer, 7 j. gema keadilan 20–33, 29–30 (2020). 15 bachtiar s bachri, meyakinkan validitas data melalui triangulasi pada penelitian kualitatif, 10 j. teknol. pendidik. 46–62, 55 (2010). 16 1304 matthew b. miles & a. michael huberman, an expanded sourcebook qualitative data analysis 308 (2 ed. 1994); ahmad rijali, analisis data kualitatif, 17 j. alhadharah 81–95, 82–87 (2018). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 367 available online at http://journal.unnes.ac.id/sju/index.php/jils community aboge. protection of the aboge islamic community is a necessity. without protection for the aboge islamic community, it will certainly have the potential to make it difficult for the aboge islamic community to exist. there are two things to protect the existence of the aboge islamic community in onje village. first, is protection from within. second, namely protection from the outside. protection from within is a protection carried out by the aboge islamic community in order to maintain and protect existence. external protection is protection carried out by parties outside the aboge islamic community but with an interest or role in protecting the existence of the aboge islamic community. i. efforts to protect from within the aboge islamic community in onje village the protection of the aboge islamic community in onje village from the inside is a fundamental effort and the first effort that must be done. without self-protection, it is certainly difficult for the aboge islamic community to survive in the midst of globalization and modernization. the values contained in the aboge islamic community and the consistency in carrying out these values, are actually able to protect the existence of the aboge islamic community. therefore, strengthening and implementing the values contained in the aboge islamic community is the answer to efforts to protect the existence of the aboge islamic community. this turned out to be in line with what was conveyed by kiai sudi maksudi as the imam of the aboge islamic community in onje village and the imam http://journal.unnes.ac.id/sju/index.php/jils 368 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils of the raden sayyid kuning mosque in onje village. kiai sudi maksudi in interviews and discussions with researchers stated directly that the way to maintain the existence of the aboge islamic community in onje village is to “cara nguri-uri, dilakoni, tradisi-tradisi”17. this means that how to maintain the existence of the aboge islamic community in onje village can be done at least by caring for, maintaining, preserving, and implementing the aboge traditions. the statement made by kiai sudi maksudi is certainly very relevant to the cultural theory of koentjaraningrat. koentjaraningrat (1983) basically states that culture is a unity of a system of ideas, behaviours, and works produced by humans. koentjaraningrat divides culture into three forms, namely: (1) the form of ideas; (2) the form of behaviour; and (3) the form of the work 18. this means that culture consists of elements of ideas, behaviour, and works. these three elements can certainly continue to exist if there is an effort through efforts to care for, maintain, preserve, and implement. if there is no such effort, it seems difficult for the existence of three forms in culture to occur. however, kiai sudi maksudi also provides concessions to the people who are members of the aboge islamic community in onje village. kiai sudi maksudi does not insist if there are people in the aboge islamic community in onje village who do not participate in caring for, maintaining, preserving and carrying out the traditions contained in the aboge. kiai sudi maksudi will not influence the people in the aboge islamic community to maintain their existence. 17 interview with kiai sudi maksudi on august 28, 2021. 18 koentjaraningrat, pengantar ilmu antropologi (1983); sumarto sumarto, budaya, pemahaman dan penerapannya, 1 j. literasiologi 144–159, 148 (2019); ryan prayogi & endang danial, pergeseran nilai-nilai budaya pada suku bonai sebagai civic culture di kecamatan bonai darussalam kabupaten rokan hulu provinsi riau, 23 humanika 61–79, 61–62 (2016); dewi yuliati, kebudayaan lokal vs kebudayaan global: hidup atau mati?, xi j. sej. citra lekha 1–10, 1 (2007). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 369 available online at http://journal.unnes.ac.id/sju/index.php/jils for kiai sudi maksudi, the existence of the aboge islamic community is up to the community. if people in the aboge islamic community want to exist, go ahead, don't want to exist too, please19. the statement from kiai sudi maksudi seems less consistent. on the one hand, kiai sudi maksudi stated that efforts to protect the existence of the aboge islamic community were carried out by caring for, maintaining, preserving, and implementing the aboge tradition. on the other hand, kiai sudi maksudi will not influence the community and leave the effort for existence to each. this statement is certainly not in line with efforts to protect the existence of the aboge islamic community. how can there be an effort to protect existence if there is no unity in protecting the existence of the aboge islamic community? it is quite difficult if efforts to protect the existence of the aboge islamic community are carried out individually or individually without any unity or togetherness. the statement from kyai sudi maksudi who gave protection to the existence of the aboge islamic community in each of them also contrasts with the statement from uji utomo. uji utomo as former onje village tourism awareness group (kelompok sadar wisata/pokdarwis). uji utomo is also part of the onje village youth leader and has been included in the aboge islamic community in onje village. uji utomo stated that the protection of the existence of the aboge islamic community in onje village could be carried out with the influence of kiai sudi maksudi as the imam of the aboge islamic community in onje village. uji utomo in an interview with the researcher stated that as long as there is influence from kiai sudi maksudi and as long as kiai sudi maksudi is still able to influence the aboge islamic community community to maintain their existence. during that time, the aboge islamic community in onje village still 19 interview with kiai sudi maksudi on august 28, 2021 http://journal.unnes.ac.id/sju/index.php/jils 370 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils existed. the only problem is, is kiai sudi maksudi able to continue to exert his influence and still have an influence on the aboge islamic community in onje village? then can kiai sudi maksudi be able to regenerate leadership in the aboge islamic community? that question must be answered. uji utomo stated that if the question can be answered by being able to influence and influence and be able to regenerate, then the aboge islamic community in onje village can still exist.20 ii. external protection efforts against the aboge islamic community in onje village in addition to internal protection for the aboge islamic community in onje village. there should be an external protection effort against the aboge islamic community in onje village. external protection efforts against the aboge islamic community in onje village can be carried out by interested parties or wishing to protect the existence of the aboge islamic community. kiai sudi maksudi when asked about protection from outside, such as the government or local government against the aboge islamic community in onje village. kiai sudi maksudi stated that there were efforts to protect the local government. kiai sudi maksudi stated that the regional government of purbalingga regency often advised kiai sudi maksudi to “nguri-uri” care for, maintain, and preserve the aboge. the local government of purbalingga regency also often supports the 20 interview with uji utomo on august 30, 2021 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 371 available online at http://journal.unnes.ac.id/sju/index.php/jils aboge islamic community through agenda and funding support for the implementation of traditional activities of the aboge islamic community in onje village.21. but this was denied by uji utomo who stated that the support provided by the local government of purbalingga regency so far has not been to the aboge islamic community in onje village but to onje village on a regional basis. uji utomo further stated that the role of the local government of purbalingga regency in supporting the agenda and funds for the implementation of traditional activities in onje village was not the aboge tradition. moreover, onje village has a historical relationship with purbalingga regency. so, support is done in relation to onje village which has contributed to the history of purbalingga regency22. then related to the protection of the existence of the aboge islamic community in onje village through concrete policies, it can be said that there is no such thing. kiai sudi maksudi stated that until now there has been no policy issued by the purbalingga regency government or the onje village government regarding the protection of the existence of the aboge islamic community in onje village23. until now, there has been no juridical regulation or decision in protecting the existence of the aboge islamic community in onje village. the same thing was also conveyed by uji utomo, that until now there is no policy or regulation that regulates the protection of the existence of the aboge islamic community in onje village24. this condition is certainly very interesting because it is found that there is no policy that protects the existence of the aboge islamic community in onje village. the aboge islamic community, which is 21 interview with kiai sudi maksudi on august 28, 2021 22 interview with uji utomo on august 30, 2021 23 interview with kiai sudi maksudi on august 28, 2021 24 interview with uji utomo on august 30, 2021 http://journal.unnes.ac.id/sju/index.php/jils 372 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils facing modernization and globalization, has the potential to lose its existence. but in fact, until now there has been no policy that regulates the protection of the existence of the aboge islamic community in onje village. whereas the function of a policy or regulation is very important in the protection of a society or community. indonesia is a state of law, of course law, in this case, including policies in the form of regulations, is very important as a basis for implementing the life of the nation and state 25. the question is, is there a need for a policy to protect the aboge islamic community in onje village? is there a need to protect the aboge islamic community in onje village? considering the conditions that occur in the aboge islamic community in onje village, as described previously. of course, the question that can arise is whether there is a need for a protection policy for the aboge islamic community in onje village? normatively, of course, protection of the aboge islamic community in onje village needs to be done. this is because there are several reasons for the need for protection, especially the existence of the aboge islamic community in onje village. first, the aboge islamic 25 dani muhtada & ayon diniyanto, dasar-dasar ilmu negara (2018); bambang panji gunawan et al., the development of indonesia as the rule of law based on 1945 constitution before and after amendments, 17 yurisdiksi j. wacana huk. dan sains 64–73 (2020); sri praptini praptini, sri kusriyah kusriyah & aryani witasari, constitution and constitutionalism of indonesia, 2 j. daulat huk. 7–14 (2019); ramli, muhammad afzal & gede tusan ardika, studi kritis terhadap konsep negara hukum, 10 media keadilan j. ilmu huk. 132–147 (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 373 available online at http://journal.unnes.ac.id/sju/index.php/jils community is a community that existed before indonesia's independence. this is in accordance with various literatures that indigenous peoples existed before indonesia's independence and until now their position is still recognized by the indonesian state.26 this means that the aboge islamic community is the nation's ancestral heritage that should be protected and preserved. do not let, the indonesian people lose one of indonesia's heritages. this of course can eliminate historical and cultural values in the development of the state. second, the aboge islamic community is part of the community or indigenous peoples in indonesia. the state through the constitution has guaranteed the rights of the community or indigenous peoples. even the state provides constitutional guarantees for indigenous communities or communities to exist. the 1945 constitution of the republic of indonesia article 18b paragraph (2) states that “negara mengakui dan menghormati kesatuan-kesatuan masyarakat hukum adat beserta hak-hak tradisionalnya sepanjang masih hidup dan sesuai dengan perkembangan masyarakat dan prinsip negara kesatuan republik indonesia, yang diatur dalam undang-undang” (the state recognizes and respects customary law community units and their traditional rights as long as they are still alive and in accordance with the development of society and the principles of the unitary state of the republic of indonesia, which are regulated by law). then article 28i paragraph (3) states that “identitas budaya dan hak masyarakat tradisional dihormati selaras dengan perkembangan zaman dan peradaban” (cultural identity and rights of traditional communities are respected in line with the 26 sulastriyono, filosofi pengakuan dan penghormatan negara terhadap masyarakat adat di indonesia, 90 yustisia 97–108, 97–98 (2014); zayanti mandasari, politik hukum pengaturan masyarakat hukum adat (studi putusan mahkamah konstitusi), 21 j. huk. ius quia iustum 227–250, 228 (2014); teddy anggoro, kajian hukum masyarakat hukum adat dan ham dalam lingkup negara kesatuan republik indonesia, 36 j. huk. pembang. 487–498, 490–491 (2006). http://journal.unnes.ac.id/sju/index.php/jils 374 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils times and civilizations). the provisions in the constitution as mentioned above mean that the state protects indigenous communities, including the aboge islamic community. based on the constitutional mandate, the aboge islamic community deserves to be protected.27 third, related to globalization and modernization. the flow of globalization and modernization cannot be stopped by anyone. the indonesian nation as part of the global community certainly cannot be separated from globalization and modernization. there are positive and negative impacts of globalization and modernization. of course, we must take the positive impact of globalization and modernization. but in the face of globalization and modernization and take a positive impact. we must first have a value or character as a strong foundation or fundamental. these values or characters can be reflected in the indigenous communities in indonesia that have existed since ancient times. therefore, it is really important to maintain the values that exist in indigenous communities in order to face the currents of globalization and modernization.28 27 jawahir thontowi, perlindungan dan pengakuan masyarakat adat dan tantangannya dalam hukum indonesia, 20 j. huk. ius quia iustum 21-36 (24) (2013); jawahir thontowi, pengaturan masyarakat hukum adat dan implemetasinya perlindungan hak-hak, 10 j. pandecta 1–13 (2015); basse sugiswati, perlindungan hukum terhadap eksistensi masyarakat adat di indonesia, xvii perspektif 31–43 (2012); yuliana primawardani, perlindungan hak masyarakat adat dalam melakukan aktivitas ekonomi, sosial dan budaya di provinsi maluku, 8 j. ham 1–11 (2017). 28 retna dwi estuningtyas, dampak globalisasi pada politik, ekonomi, cara berfikir dan ideologi serta tantangan dakwahnya, 11 al-munzir 195–218, 196 (2018); donny ernawam, pengaruh globalisasi terhadap eksistensi kebudayaan daerah di indonesia, 32 j. kaji. lemhannas ri 5–11, 6–7 (2017); anisa eka pratiwi et al., jurnal civics : media kajian kewarganegaraan pengalaman pembelajaran, 15 j. civ. media kaji. kewarganegaraan 95–102, 95 (2018); paulus rudolf yuniarto, masalah globalisasi di indonesia: antara kepentingan, kebijakan, dan tantangan, 5 j. kaji. wil. 67–95, 68–70 (2014); ricco andreas & bambang suryadi, nilai islam dan pancasila: pengaruh globalisasi sistem hukum di indonesia, 7 nizham 80–97, 80–81 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 375 available online at http://journal.unnes.ac.id/sju/index.php/jils indeed, we must open ourselves to globalization and modernization, but the values that have existed from the past may be maintained or synergized with the times.29 this is where the importance of the aboge islamic community in facing the currents of globalization and modernization. people who are members of the aboge islamic community have the right to defend the aboge teachings or values in order to face the currents of globalization and modernization. this is one of the important reasons to protect the aboge islamic community. because when the aboge islamic community is protected, the aboge teachings or values will also be protected. this is because the aboge islamic community is the subject of the aboge's teachings or values. these three reasons make it important to protect the aboge islamic community. then if we look at the protection of indigenous communities in various countries. various countries have policies issued by the government to protect indigenous communities or local indigenous people. for example, the policy of protecting aboriginal people by the australian government. then the vietnamese indigenous protection policy.30 the question is how to protect the aboge islamic community? indonesia as a state of law as mentioned earlier has the consequence that the law must be the commander in the life of the state. this means that the law becomes the basis in carrying out the life of the nation and state. in this case, the law is used as an instrument in the protection of community rights. therefore, there is a need for legal policies that must be issued by legal policy (2019); r mayasari eka, tantangan hukum adat dalam era globalisasi sebagai living law dalam sistem hukum nasional, j. equitable 94–112, 95–96 (2018). 29 sri sudaryatmi, peranan hukum adat dalam pembangunan hukum di era globalisasi, 41 mmh 572–578, 578 (2012); ernawam, supra note 30. 30 kemenperpemnas, masyarakat adat di indonesia: menuju perlindungan sosial yang inklusif 49–55 (2013). http://journal.unnes.ac.id/sju/index.php/jils 376 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils makers in the protection of the aboge islamic community in onje village. the question is what kind of legal policy can be formed to protect the aboge islamic community in onje village? before answering this question, the researcher first explained the surprising findings in the field. based on the research conducted by the researcher, it was found that the field data shows that the legal policy of protecting the aboge islamic community in onje village is not really needed. it was even found that the existence of a legal protection policy could potentially narrow the expression of the aboge islamic community and could potentially make the aboge islamic community does not recognize it as part of the aboge islamic community. kiai sudi maksudi in interviews and discussions with researchers stated that the legal policy of protecting the aboge islamic community in onje village is not an “important” or “substantial” matter. kiai sudi maksudi welcomes if there is a legal policy such as a regional regulation on the protection of the aboge islamic community. kiai sudi maksudi also doesn't mind if there is no legal policy to protect the aboge islamic community in onje village. kiai sudi maksudi stated that the aboge islamic community in onje village would continue to run even without a legal policy as a protective instrument.31 uji utomo also stated almost the same thing. uji utomo emphasizes that there is no need for a legal policy to protect the aboge islamic community in onje village. uji utomo added that the aboge islamic community in onje village does not yet need a legal policy related to protection. even uji utomo thinks that the existence of a policy of protecting the aboge islamic community in onje village has 31 interview with kiai sudi maksudi on august 28, 2021 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 377 available online at http://journal.unnes.ac.id/sju/index.php/jils the potential to narrow the expression of the people who are part of the aboge islamic community in onje village. the existence of a legal policy according to uji utomo will indeed explain and make the position of the aboge islamic community in onje village stronger. the identity of the aboge islamic community in onje village is also clearer. however, the problem is whether the people who are members of the aboge islamic community in onje village dare to accept the policy and dare to be honest as part of the aboge islamic community?32 uji utomo further stated that the existence of a legal policy to protect the aboge islamic community in onje village has the potential to narrow the space of expression for the people who are members of the aboge islamic community in onje village. community members have the potential to not be frank as part of the aboge islamic community in onje village. uji utomo is of the opinion that let the aboge islamic community in onje village live as usual. there is no need for regulations governing the aboge islamic community in onje village. the problem of the aboge islamic community in onje village surviving is that it depends on its own strength. can it survive in the midst of globalization and modernization or not? uji utomo suggests that the key to the aboge islamic community in onje village can survive if there is still the influence of aboge figures in onje village and there is regeneration of aboge figures in onje village.33 looking at the responses from kiai sudi maksudi and uji utomo regarding legal policies that are not so "important" in the protection of the aboge islamic community in onje village, it is certainly very interesting. the views of kiai sudi maksudi and uji utomo must certainly be respected. this is because sudi maksudi is 32 interview with uji utomo on august 30, 2021 33 interview with uji utomo on august 30, 2021 http://journal.unnes.ac.id/sju/index.php/jils 378 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils part of the aboge islamic community in onje village. likewise, uji utomo was once part of the aboge islamic community in onje village. the researcher, in this case, has the opinion that the urgency of the legal policy of protecting the aboge islamic community in onje village is certainly debatable and an opinion that must be respected. the researcher also argues that it is not effective and efficient if there is a legal policy to protect the aboge islamic community in onje village, but the main character of the aboge islamic community in onje village himself has not considered the importance of this policy. moreover, kiai sudi maksudi as the main figure in the aboge islamic community in onje village knows more about the spiritual atmosphere and sociological conditions of the aboge islamic community in onje village. however, the researcher still considers that a legal policy for the protection of the aboge islamic community in onje village needs to be established. without a legal policy, it is relatively difficult for the aboge islamic community to guarantee protection for its existence. indeed, the constitution has guaranteed the rights and positions of indigenous peoples, including the aboge islamic community in onje village. but the constitution is the supreme law and does not regulate technical aspects such as the concrete way of protection from the state or government. there needs to be a technical policy that regulates how to protect the aboge islamic community in onje village. therefore, a more technical legal policy needs to be formed in the context of protecting the aboge islamic community in onje village. only in the policy does not stipulate and mention concretely related to the protection of the aboge islamic community in onje village. the policy can be made universally, such as on the protection of people or indigenous communities. the question is what kind of legal policy is this? the form of legal policy must of course be in the http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 379 available online at http://journal.unnes.ac.id/sju/index.php/jils form of statutory regulations in order to have a regulatory function. legislation also has a wider scope of regulation. then related to the right type of legislation is regional regulations (peraturan daerah) 34. this is because regional regulations are included in the type of hierarchy of laws and regulations. this is in accordance with article 7 of law number 12 of 2011 concerning the establishment of legislation which states that: (1) jenis dan hierarki peraturan perundang-undangan terdiri atas: a. undang-undang dasar negara republik indonesia tahun 1945 (constitution); b. ketetapan majelis permusyawaratan rakyat (decree of the people's consultative assembly); c. undang-undang/peraturan pemerintah pengganti undangundang (laws/government regulations in lieu of laws); d. peraturan pemerintah (government regulations); e. peraturan presiden (presidential regulation); f. peraturan daerah provinsi (provincial regulation); dan g. peraturan daerah kabupaten/kota (regional regulation). (2) kekuatan hukum peraturan perundang-undangan sesuai dengan hierarki sebagaimana dimaksud pada ayat (1). seeing the type and hierarchy of the legislation, regional regulations have a clear position. then also regional regulations have a reach at the district/city level. the process of forming regional regulations also does not consume much energy when compared to 34 a fadhilah yustisianty, peraturan daerah dalam konsep negara hukum dan permasalahannya 1–39 26 (2018); office of the associate director for policy, book and media review: a purchaser’s guide to clinical preventive services: moving science into coverage, centers for disease control and prevention . http://journal.unnes.ac.id/sju/index.php/jils 380 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils laws. this is because local regulations are at the local level. but local regulations have almost the same function as laws. only regional regulations have a narrower area of application (one district/city area) than the law. regional regulations also have a position under the law. therefore, it is appropriate that the aboge islamic community in onje village is protected through local regulations. the regional regulation in question is the purbalingga regency regional regulation. considering the aboge islamic community in onje village is in purbalingga regency. then related to the scope of regional regulations, it does not explicitly regulate the protection of the aboge islamic community in onje village. local regulations include rules that are universal but concrete, such as local regulations on the protection of indigenous peoples in purbalingga regency or regional regulations on strengthening indigenous peoples in purbalingga regency. so, the local regulation not only protects the aboge islamic community in onje village. the regional regulation protects all indigenous peoples in purbalingga regency. until now, researchers have not found any local regulations in purbalingga regency that specifically regulate the protection or strengthening of indigenous peoples in purbalingga regency. likewise with the protection of the aboge islamic community in onje village which has not been protected through policies in the form of regional regulations. therefore, it is appropriate to form a regional regulation in purbalingga regency which regulates the protection or strengthening of indigenous peoples in purbalingga regency. the scope of the regulation consists of at least (1) guarantees for the implementation of constitutional rights; (2) protection from acts of coercion and violence; and (3) activity support or material support for protection and strengthening. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 381 available online at http://journal.unnes.ac.id/sju/index.php/jils conlusion protection of the aboge islamic community in onje village is a necessity in order to protect its existence. without protection, the existence of the aboge islamic community can be threatened. protection of the aboge islamic community in onje village can be done from within and from outside. protection from within is carried out by caring for, maintaining, preserving, and carrying out the aboge tradition. in addition, protection from within for the existence of the aboge islamic community in onje village can also be done through the influence of leaders or leaders of the aboge islamic community in onje village. the leader or figure must have influence and influence the members of the aboge islamic community in onje village in order to protect and maintain existence. protection from within also needs to be done with regeneration. the aboge islamic community in onje village, especially leaders and figures, must be able to regenerate so that there is sustainability of the aboge islamic community in onje village. the next protection is external protection for the aboge islamic community in onje village. regarding external protection, one of which is carried out by the local government by telling the leaders of the aboge islamic community in onje village to care for, maintain, and preserve the aboge tradition. as for the support for activities and funds, it is still a debate whether it is support for the aboge islamic community in onje village or dukukan for onje village. then until now there has not been found a legal policy at the local government level of purbalingga regency which regulates the protection of the aboge islamic community in onje village. looking at these conditions, it was found interesting data that the leader or imam of the aboge islamic community in onje village stated that legal policies regarding the protection of the aboge http://journal.unnes.ac.id/sju/index.php/jils 382 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils islamic community in onje village could be needed or not. this means that the policy is between necessary and unnecessary. even a former member of the aboge islamic community stated that there was no need for a policy to protect the aboge islamic community in onje village. however, the researcher states that the legal policy of protecting the aboge islamic community in onje village is needed in order to protect and ensure the existence of the aboge islamic community in onje village. only in this legal policy does not specifically regulate the aboge islamic community in onje village. rather, it regulates and protects all indigenous communities in purbalingga regency. references abdulkarim, a., komalasari, k., saripudin, d., ratmaningsih, n., & anggraini, d. n. 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(2017). aliran minoritas dalam islam di indonesia. journal of contemporary islam and muslim societies, 1(2), 141. https://doi.org/10.30821/jcims.v1i2.1071 watra, i. w. (2020). agama-agama dalam pancasila di indonesia (perspektif filsafat agama) (i. b. p. e. suadnyana (ed.)). denpasar: unhi press. widayati, s., & maulidiyah, e. c. (2018). religious tolerance in indonesia. 2nd international conference on education innovation (icei 2018) religious, 212, 685–688. https://doi.org/10.2991/iceihttp://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.20961/yustisia.v3i3.29556 https://doi.org/10.15408/jp3i.v1i3.10703 https://doi.org/10.15294/pandecta.v10i1.4190 388 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 18.2018.155 yuliati, d. (2007). kebudayaan lokal vs kebudayaan global: hidup atau mati? jurnal sejarah: citra lekha, xi(1), 1–10. yuniarto, p. r. (2014). masalah globalisasi di indonesia: antara kepentingan, kebijakan, dan tantangan. jurnal kajian wilayah, 5(1), 67–95. https://doi.org/10.14203/jkw.v5i1.124 yustisianty, a. f. (2018). peraturan daerah dalam konsep negara hukum dan permasalahannya. online paper, kementerian hukum dan ham kawnil sulawesi barat. retrieved from https://sulbar.kemenkumham.go.id/attachments/article/4339/pe rda%20dalam%20konsep%20negara%20hukum.pdf zarbaliyev, h. (2017). multiculturalism in globalization era: history and challenge for indonesia. international journal of scientific studies (ijss), 13(1), 1–16. https://doi.org/10.21831/jss.v13i1.16966 http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.14203/jkw.v5i1.124 https://doi.org/10.21831/jss.v13i1.16966 attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf238feebc20cd • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23940bb4206d • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare jils (journal of indonesian legal studies) volume 6(2) 2021 411 available online at http://journal.unnes.ac.id/sju/index.php/jils research article customary delict of penglipuran bali in the perspective of the principle of legality: a dilemma and arrangements for the future ade adhari1 , anis widyawati2 , i wayan p windia3 , rugun romaida hutabarat4 , neysa tania5 1,4,5 faculty of law, universitas tarumanagara, jakarta, indonesia 2faculty of law, universitas negeri semarang, semarang, indonesia 3faculty of law, universitas udayana, bali, indonesia  adea@fh.untar.ac.id submitted: august 8, 2021 revised: october 29, 2021 accepted: oct 20, 2021 abstract in the context of criminal law, recognition of customary law begins with a very fundamental principle, namely the principle of legality – a legal basis for declaring an act as a criminal act. this paper examines the implementation of customary law regarding the violation of indonesian legal thoughts amid various world legal thoughts published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 2, november 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-9547-502x https://orcid.org/0000-0003-4621-3178 https://orcid.org/0000-0001-9214-9651 https://orcid.org/0000-0001-8071-9864 412 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils penglipuran customary, in accordance with the customary delict from the perspective of the principle of legality and the future policy formulation of the principle of legality that accommodates the existence of customary law. to answer these problems, socio-legal research methods are used, data in the form of legal documents and results of in-depth interviews, various approaches (legal, theoretical, and historical approaches) and then analyzed through deductiveinductive methods. the results show that the criminal code adheres to the principle of formal legality, consequently, the written law is the only source to declare an act as an offense. whereas in the penglipuran community, it is known that customary delict is regulated not only in awig-awig but also unwritten ones such as pararem penyahcah awig and perarem ngele. the existence of indigenous peoples is not only found textually but also commonly, carrying out their lives based on customary law which contains applicable values, principles, and norms. therefore, it is necessary to formulate the principle of legality that accommodates the existence of customary law as a source of criminalizing acts. this is intended to realize a criminal law that accommodates the rights of indigenous peoples to “their own institutions, laws, and customs". keywords: customary criminal law; customary delict; penglipuran http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 413 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract …………………………………………………….…. 411 table of contents ……………………………..…...….…... 413 introduction ………………………………….…………….. 414 the dilemma of the implementation of the balinese penglipuran customary criminal law in the perspective of the principle of legality 417 regulation of the implementation of penglipuran customary criminal law in the frame of future criminal law policy ……………. 427 conclusion …………………………..………………………. 436 references ………………………………………………….… 437 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. how to cite: adhari, a., widyawati, a., windia, i. w. p., hutabarat, r. r., & tania, n. (2021). customary delict of penglipuran bali in the perspective of the principle of legality: a dilemma and arrangements for the future. jils (journal of indonesian legal studies), 6(2), 411-436. https://doi.org/10.15294/jils.v6i2.50555 http://journal.unnes.ac.id/sju/index.php/jils https://journal.unnes.ac.id/sju/index.php/jils/article/view/50555 414 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction constitutionally, the existence of indigenous peoples is recognized, respected, and protected. recognition, respect, and protection of indigenous people incorporate customary law (adatrecht) in its community. a community's customary law is the entire value, principle, or norm that is used as a guide for the daily life of all members of the community, including the rules of legal relations amongst the community and god almighty, the community and the environment and within the community itself. in carrying out the legal relationship mentioned above, customary law communities are bound by their respective customary laws. this is a characteristic of customary law whose application is special, generally only in the territory of customary law communities. there are many areas of customary law communities in indonesia. penglipuran village in bali is one of the areas in which indigenous people and customary law still exist. according to the traditional head of penglipuran village, it is known that penglipuran has a population of 1,015 with a total of 246 family heads. the traditional village in bali was previously known as the pakraman village by the bali province regional legislation number 3 of 2001 concerning desa pakraman as amended by bali provincial legislation number 3 of 2003 concerning amendment to bali provincial legislation number 3 of 2001 concerning desa pakraman (bali legislation 3/2001). although today, it is no longer in force and was replaced to bali province regional legislation number 4 of 2019 concerning desa adat in bali (bali legislation 4/2019). the term “desa pakraman” is also replaced to “desa adat”. as stated on article 1 number 8 of the bali regional regulation 4/2019, desa adat is a customary law community unit in bali that has territory, position, original arrangement, traditional rights, own assets, traditions, social life rules for generations, inherited from a sacred place (kahyangan tiga or kahyangan desa), duties and the authority and right to regulate and manage their own household. chapter xi of bali provincial legislation 4/2019 became the basis for the formation of majelis desa http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 415 available online at http://journal.unnes.ac.id/sju/index.php/jils adat (mda) which is a forum for pakraman villages. normatively, the mda consists of provincial level mda, regency/city level mda and district level mda. from an empirical perspective, there is no guarantee that there will be no violation of customary law. these violations in the context of customary law in penglipuran village are known as "customary violations". this is certainly different from the violation of the law known in the context of state law. based on national law, violations of the law are generally categorized into various types, namely violations of civil law, violations of criminal law, violations of administrative law, violations of international law, and so on. there is even another category for violations of public law and private law. this is what distinguishes it from customary law. customary law does not recognize the categorization of law as found in national law. all types of violations are called customary violations. in the context of customary law communities, customary law contains various legal aspects, one of which includes customary violations. so, it is appropriate to reference customary law regarding customary violations. in the context of criminal law, customary offenses with nuances of criminal dimensions are known as customary delict, a type of offense that is a violation of customary criminal law. in the penglipuran customary law community, there are also customary violations that can be qualified as a customary delict. these acts include theft, murder, rape, and so on. the customary criminal law of the penglipuran customary law community is a form of criminal law policy in tackling these customary delicts. in this case, it can be seen that to overcome crime, customary criminal law is one part of the national criminal law policy which can currently be found in the criminal code (kuhp) and laws and regulations outside the criminal code. currently, customary law communities are maintaining their customary law as a guide for declaring wrongdoing which is categorized as a customary delict. the customary law in penglipuran village was developed based on the agreement of the penglipuran http://journal.unnes.ac.id/sju/index.php/jils 416 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils customary law community. although the existence of the penglipuran customary criminal law is recognized empirically, the acceptance of customary law as a basis to declare an act as a customary delict still is not recognized normatively by article 1 paragraph (1) of the current criminal code which states, "no act shall be punished unless by virtue of a prior statutory penal provision". this means that only a statute (a formal written law) is accepted to regulate delicts. explicitly on article 15 of law number 12 of 2011 on legislation making emphasizes that material contents regarding criminal provisions may only be regulated in the following type of legislation: law, provincial regulation, or regency/municipal regulation. this means that the only basis for imposing a criminal offense is a statute or a regional regulation. such provisions certainly do not reflect the current state of customary law communities that are a part of indonesia whose rights should be protected by the criminal law. the constitution of the republic of indonesia through article 18b paragraph (2) has stipulated that the state shall recognize and respect entities of the adat law (customary law) societies along with their traditional rights to the extent they still exist and are in accordance with the development of the society and the principle of the unitary state of the republic of indonesia, which shall be regulated by laws. constitutional acceptance of indigenous peoples certainly includes their customary law. customary law owned by a customary law community is part of the universally recognized human rights, in which customary law communities have rights in the form of "their own institutions, laws, and customs”. constitutionally, through an expressive verbis formulation, it requires customary law to be a part of the criminal law to regulate the customary delicts. this paper examines the implications of adhering to the legality principle which emphasizes written legal rules as the basis for criminalizing contained in the criminal code with the enactment of customary criminal law in indonesia, one of which is balinese customary law, namely in the village of penglipuran. in addition, this paper also examines the policy formulation of the legality principle in http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 417 available online at http://journal.unnes.ac.id/sju/index.php/jils the future so that it can better accommodate the existence of customary criminal law in tackling customary offenses. the research method used to answer the problems in this paper is simultaneous between non-doctrinal and doctrinal research methods but was finalized by doctrinal research method. doctrinal research methods are used to answer problems related to the normative aspects of the application of customary criminal law in the perspective of the principle of legality, while non-doctrinal methods are used to observe and examine the existence of customary delicts in the penglipuran customary law community. in addition, this paper uses secondary data in the form of legal documents obtained through literature studies in the form of the 1945 constitution of the republic of indonesia, the criminal code, various positive legal products related to customary law as well as primary data taken through observation and in-depth interviews with the traditional head of penglipuran and balinese customary law experts. to obtain these data, a socio-legal approach and a deductive-inductive data analysis technique were chosen. the dilemma of the implementation of the balinese penglipuran customary criminal law in the perspective of the principle of legality the constitution is a state basis, elliot bulmer calls it the higher law.1 s. e. finer et.all as quoted by john graham and elder c. marques states that:2 1 international idea mentions the vast majority of contemporary constitutions describe the basic principles of the state, the structures and processes of government and the fundamental rights of citizens in a higher law that cannot be unilaterally changed by an ordinary legislative act. this higher law is usually referred to as a constitution. see elliot bulmer, what is a constitution? principles and concepts, international idea, sweden, (2017), p. 2. 2 john graham dan elder c. marques, understanding constitutions: a roadmap for communities, institute on governance ottawa, canada, (2000). http://journal.unnes.ac.id/sju/index.php/jils 418 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils a typical definition of constitutions sees them as “codes of norms which aspire to regulate the allocation of powers, functions, and duties among the various agencies and offices of government, and to define the relationships between these and the public.” in indonesia, the 1945 constitution of the republic of indonesia (the 1945 constitution) is a written constitution that forms the basis for the implementation of the legal system in indonesia. the 1945 constitution constitutes the fundamental norm of any legislation. this is normatively confirmed in article 3 paragraph (1) of law number 12 of 2011 on legislation making (law no. 12/2011). as a fundamental norm, the 1945 constitution must be the basis for various laws and regulations, both in the field of civil, international, administrative, and criminal law. criminal regulations enforced in indonesia must take into account the fundamental norms set out in the 1945 constitution. one of the fundamental norms that need to be considered is about the recognition and respect for customary law communities as stipulated in article 18b paragraph (2) of the 1945 constitution “the state shall recognize and respect entities of the adat law societies along with their traditional rights to the extent they still exist and are in accordance with the development of the society and the principle of the unitary state of the republic of indonesia, which shall be regulated by laws." the existence of this article is very important in the context of indonesia which believes in bhinneka tunggal ika. regarding the provisions of article 18b paragraph (2) of the 1945 constitution, the constitutional court through the constitutional court decision number 35/puu-x/2012 states that3: in the constitutional provisions, there is one important and fundamental point in the movement of legal relations. the important 3 see constitutional court decision number 35/puu-x/2012 concerning the review of law number 41 of 1999 concerning forestry against the 1945 constitution of the republic of indonesia. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 419 available online at http://journal.unnes.ac.id/sju/index.php/jils and fundamental point is that these customary law communities are constitutionally recognized and respected as rights holders, which of course can also be burdened with obligations. thus, customary law communities are legal subjects. as legal subjects in a society that has become a state, customary law communities must receive attention as other legal subjects when the law wants to regulate. the consequence of recognizing customary law communities as confirmed in the constitution is the recognition, respect and protection of customary law. the constitutional court views customary law as living law4. customary law becomes a reality that grows and lives amid society which of course must be regulated through criminal law. in other words, criminal law regulations must recognize and respect the existence of customary law. in the context of criminal law, the recognition of customary law as a source of criminal law can be seen from the principles and norms of criminal law that are enforced. currently, indonesia is still using the criminal code (kuhp) which is based on wetboek van strafrecht voor nederlands indie (wvs) which is not built on the spirit of the indonesian nation. this is reminiscent of piepers' view as quoted by sahetapy stating: “met die code penal (read-w.v.s.ned.) ging het als een broek die eerst door vader wordt gedragen, dan overgaat op den oudsten en vervolgens met een lap er op, op den tweede zoon.” translated by sahetapy, “code penal (kuhp) is like a pair of pants that was used by the father, then switched to the eldest child and then with a patch of cloth passed on to the second child.” this statement is reasonable, because as said by sahetapy, “kuhp is said to be from france and not only the netherlands, because the netherlands was essentially took over from france, namely code penal c.q. w.v.s.ned. where france once colonized the netherlands.5 4 id., p. 170. 5 j.e. sahetapy, reformasi hukum harus mengejawantahkan pancasila, dalam komisi yudisial republik indonesia, dialektika pembaruan sistem hukum nasional, (2012), p. 120. http://journal.unnes.ac.id/sju/index.php/jils 420 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils the criminal code (kuhp) has undergone developments or changes. barda nawawi arief once stated the changes or developments, including: 1. law number 1 of 1946 (article viii): removes article 94 chapter ix book i of the criminal code on the meaning of the term 'kapal belanda' (nederlandsche schepen); 2. law number 20 of 1946 (article i): adding a new principal criminal sanction in article 10 sub a of the criminal code with an undisclosed criminal sanction; 3. law number 73 of 1958 (article ii): adding article 52a (regarding the severity of the crime for committing a crime using the national flag); 4. law number 4 of 1976: changing and adding to the expansion of the territorial principle in article 3 of the criminal code (expanded to aircraft) and the universal principle in article 4 of the 4th criminal code (expanded to several aviation crimes); and adding article 95a (regarding the meaning of 'pesawat udara indonesia’), article 95b (regarding the meaning of ‘dalam penerbangan’), and article 95c (regarding the meaning of ‘dalam dinas’); 5. law number 3 of 1997 (article 67): revoking article 45, 46, and 47 of the criminal code; 6. law number 27 of 1999: adding article 107a to f of the criminal code regarding to crime against national security; 7. law number 20 of 2001 (article 43b): revoking article 209, 210, 387, 388, 415, 416, 417, 418, 419, 420, 423, 425, 435 of the criminal code; 8. law number 21 of 2007: article 65 revoking article 297 and 324 of the criminal code.6 with regards to changes or developments in the criminal code, barda nawawi arief stated that there were no fundamental changes from the general principles of the criminal system in the criminal code. it is only natural that a statement from the drafting 6 barda nawawi arief, perkembangan sistem pemidanaan di indonesia, (semarang: penerbit pustaka magister, 2011). pp. 7-8. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 421 available online at http://journal.unnes.ac.id/sju/index.php/jils team for the drafting of the first kuhp book i of the new kuhp of 1964 was put forward as quoted by barda nawawi arief7: 1. although law number 1 of 1946 has tried to adapt to the atmosphere of independence, but in essence the principles and basics of criminal law and criminal law are still based on the science of criminal law and the practice of colonial criminal law; 2. in essence, the principles and basics of criminal law and colonial criminal law still persist with the blanket and face of indonesia. in the colonial legacy of the criminal code there are general principal rules that apply to all delicts, both those regulated in the criminal code and legislation outside the criminal code (laws or regional regulations). one of these fundamental principles is the legality principle. against this principle, sudarto stated8 that in criminal law, there are known principles formulated in latin: "nullum delictum, nulla poena, sine praevia lege poenali" which is sometimes referred to briefly but inaccurately as the principle of "nulla poena, sine lege", this principle is also called the principle of legality. this principle is important in criminal law. in the criminal code, this principle is contained in article 1 paragraph (1) which reads: no act can be punished except on the strength of the criminal rules in the legislation that existed before the act was committed. if detailed, then article 1 paragraph (1) contains two things: 1. a criminal act must be formulated/mentioned in the legislation; 2. this law must exist before the occurrence of a crime. regarding the above, sudarto stated that one of the consequences is that acts that are not listed in the law as a crime cannot be punished. so, with this principle the unwritten law has no power to be applied.9 the juridical consequence of the formulation of 7 id., p. 8-9. 8 sudarto, hukum pidana i, edisi revisi, (semarang: yayasan sudarto, 2018), pp. 2829. 9 arief, supra note 6. http://journal.unnes.ac.id/sju/index.php/jils 422 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils the legality principle in article 1 paragraph (1) of the criminal code is the source for declaring an act as an offense is only a statutory regulation, which of course leads to written legal norms. stated on law number 12 of 2011, only statutory regulations are allowed to regulate criminal norms. article 15 paragraph (1) of law number 12 of 2011 stipulates that material contents regarding criminal provisions may only be regulated in law, provincial regulation, or regency/municipal regulation. article 1 paragraph (1) of the criminal code in conjunction with article 15 paragraph (1) of law number 12 of 2011 provides legitimacy for local laws and regulations to regulate criminal legal norms that generally rules which actions qualify as criminal acts, what sanctions can be imposed on these acts and how the criminal sanctions are implemented. any act that is qualified as a crime can be subjected to criminal sanctions. such regulatory provisions create implications for unwritten legal recognition as a source for declaring an act as a criminal act. substantially, article 1 paragraph (1) of the criminal code in conjunction with article 15 paragraph (1) of law number 12 of 2011 is not in line with article 18b paragraph (2) of the 1945 constitution which states “the state shall recognize and respect entities of the adat law societies along with their traditional rights to the extent they still exist and are in accordance with the development of the society and the principle of the unitary state of the republic of indonesia, which shall be regulated by laws." article 18b paragraph (2) of the 1945 constitution mandates that criminal law respects the existence of customary law communities, customary law and their customary delicts. every customary law community, including in bali, has customary law that applies to all indigenous people. the traditional head of penglipuran stated that as a traditional village, customary law or awig-awig was used as a guide to organize and regulate the activities of all indigenous peoples in penglipuran. every traditional village must have awig-awig as a guideline, if there is no awig-awig then there is no guideline. customary law is used as a guide to declare http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 423 available online at http://journal.unnes.ac.id/sju/index.php/jils wrong to those who violates it.10 it is in this awig-awig that all the rules governing the behavior of the community in the customary law community are listed. written awig-awig is a documented form of customary law. the awig-awig are set by members of the customary law community through meetings or meetings in the village called sangkepan. the traditional head of penglipuran also stated that the awigawig of penglipuran village has existed for a long time, but it was only recorded in writing in 1989. the awig-awig that applies in penglipuran village is certainly not contrary to pancasila and the 1945 constitution. this is confirmed in the awig-awig of penglipuran village: desa adat penglipuran ngemanggehan pemikukuh: 1. pancasila; 2. the 1945 constitution, the originator of article 18 of the act no. 5/1974, law no. 5/1979; 3. tri hita karana manut tatwaning buana agung. the provisions above cannot be separated from the belief of the penglipuran customary law community itself. the indigenous people of penglipuran believe that as indigenous people, they must carry out their obligations to customs and obligations to the state. traditional villages recognize the existence of the state (obedient, docile, devoted to state rules) and secondly, indigenous peoples have their own rules to regulate their customary welfare. but both of these must be parallelized; there must be no contradiction. customary law is the basis for determining an act classified as a customary violation and what sanctions can be imposed if such a violation occurs. in a scientific context, substantially customary law contains customary delicts and sanctions. the balinese customary law community in the penglipuran area has determined an act known as a customary delict. in general, it can be said that, in principle, the customary delicts contain several elements. first, some actions are not allowed to cause imbalances in society. second, there are 10 result of interview with the traditional head of penglipuran village, 26 november 2018. http://journal.unnes.ac.id/sju/index.php/jils 424 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils efforts/reactions or sanctions from the community to restore this balance. customary offenses in the penglipuran customary law community arise when there are actions that cause imbalances in society, and there are efforts to maintain existing customary law norms. customary delicts in balinese customary law communities can be qualified as follows: 1. customary delicts pertaining to morality, these delicts consist as: a. lokika sanggraha lokika sanggraha, as formulated in article 359 of the adi religion book, as well as the development of community views and judicial practice in the bali area, is a love relationship between a man and a woman who are both not yet bound by marriage, followed by consensual sexual relations based on a promise from the man to marry the woman. however, after the woman became pregnant, the man broke off his promise to marry the woman and ended their relationship without a valid reason. b. drati krama drati krama is a customary delict of a sexual relationship between a woman and a man while still being married to someone else. in short, it can be said that drati krama is the same as adultery in the criminal code. c. gamia gamana gamia gamana is a customary delict of a prohibition on sexual relations between people who still have close family relations, either in a straight line or sideways. similar provisions are also regulated in article 8 of law no. 1 of 1974 concerning marriage. d. mamitra ngalang mamitra ngalang is a form of customary offense in the form of a married man having a relationship with another woman who he gives spiritual and physical support like husband and wife, but this woman is not legally married to him. their relationship is continuous and usually the woman is placed in http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 425 available online at http://journal.unnes.ac.id/sju/index.php/jils a separate house. this customary delict is very similar to drati krama, but the emphasis is on the man who is already married, while the woman is still not bound by marriage. e. salah krama salah krama is to have sex with creatures of the opposite sex. those sexual relationship occurs between humans and animals like a man having sex with a female cow. 2. customary delict concerning property customary delict regarding property regulated in the awig-awig of traditional villages can be categorized into two groups: stealing sacred objects and destroying sacred objects. 3. customary delict concerning personal interest this type of violation includes uttering dirty words wakparusia, such as cursing, slandering or mapisuna, cheating/lying or pecking/mogbog, and so on. 4. violation of customs due to negligence or not carrying out obligations. this customary violation, for example, is negligent or does not carry out obligations as a citizen or customary village manners, such as not carrying out the obligations of ayah-ayahan, not attending meetings or village community meetings, not fulfilling the obligation to pay pepeson or paturunan fees for the benefit of ceremonies or development, and so on. -other. qualifications as stated above are qualifications based on doctrine (classified by doctrine).11 in customary law, customary sanctions transpire if someone violates the customary law of the penglipuran customary law community. as a part of the pakraman village, violations of customary law are known as customary violations. sanctions given in the case of customary violations are often referred to as customary sanctions, customary reactions, or customary corrections. 11 j.a.w. lensing menamakan pembedaan kualifikasi delik menjadi classified by statute dan classified by doctrine. perhatikan dalam barda nawawi arief, kebijakan formulasi ketentuan pidana dalam peraturan perundang-undangan, (semarang: pustaka magister, 2012). http://journal.unnes.ac.id/sju/index.php/jils 426 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils customary sanctions imposed on “perpetrators” of violating customary law are aimed to restore balance or harmony between the actual (sekala) and the supernatural (niskala) in the traditional community of penglipuran village. restoring the magical balance becomes the orientation of punishment for the customary violations that occur. this is the philosophical basis for the punishment of the penglipuran customary law community due to its customary law characteristics: religious, magical, communal, concrete, and cash. in general, in the balinese customary law community, the source of the existence of customary sanctions can be found in various ways, including: 1. the decision of the village prajuru or the customary village leader (written and unwritten) 2. village perarem (written and unwritten) 3. pakraman village’s awig-awig (written and unwritten) 4. catur dresta (sastra dresta, desa dresta, loka dresta dan kuna dresta). 5. paswara (king's judgment) 6. agreements/decisions of customary institutions such as the council for the trustees of traditional institutions (mpla) and the implementing and fostering body of customary institutions (bppla). agreement/decision of the indigenous bendesa forum. 7. agreement/decision of the pakraman village council. 8. book of manawa dharmasastra (hindu law). 9. books of religion (“religion”, “purwa religion”, “kutara religion” and “adi religion”). customary sanctions can generally be categorized into three groups known as tri danda (three sanctions) consisting of arta danda (for expample, a fine), sangaskara danda (for example, carrying out a cleansing ceremony or a ceremony of pemarisudan), and jiwa danda (for example, apologizing or manegaksama). the three types of sanctions are usually carried out simultaneously. it means that the perpetrator can be subject to arta danda, sangaskara danda, and jiwa danda for a violation of customs. the customary law community of penglipuran is very devoted to their customary law. this is due to legal awareness that arises from http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 427 available online at http://journal.unnes.ac.id/sju/index.php/jils customary law made by the customary law community themselves. so, the awareness factor was born because the source for making customary law is from within the community itself. penglipuran customary criminal law is one of the many customary criminal laws that live in the customary law community in indonesia. the penglipuran customary criminal law regulates customary violations as stated above lives in people's daily lives. meanwhile, from a normative point of view, its existence is not recognized by the formulation of the principle of legality based on article 1 paragraph (1) of the criminal code. regulation of the implementation of penglipuran customary criminal law in the frame of future criminal law policy the desire to be free from the shackles of colonialism’s legal products implied giving the mandate to seek “national law development/renewal”. apart from being implied as the ideals of the proclamation, it is also stated in the preamble of the 1945 constitution which among other things is stated “... by the grace of god the almighty and impelled by the noble desire to live a free national life, the people of indonesia hereby declare their independence.....”. in this case, independence is intended so that indonesian can embrace a “free national life,” which also implies “a nation free from the shackles of colonial law.” the spirit of national law reform (including the renewal of the national criminal law) can be understood if the editorial is contemplated in article ii of the transitional rules of the 1945 constitution of the republic of indonesia, “all existing state bodies and regulations are still in effect immediately, as long as new ones have not been enacted according to this constitution”. the noble ideals to be free from colonial law do not seem to have been “achieved”, this can be seen from the current criminal law system that is still based on the criminal code (kuhp). whereas http://journal.unnes.ac.id/sju/index.php/jils 428 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils stated in the 1945 constitution, it is essential to consider reforming the national criminal law. this becomes relevant, because with the constitution, a country as a community has a clear goal and will guide it towards what it aspires to.12 the 1945 constitution has stated the goals of the indonesian state, which must also be the final goal of efforts to develop national criminal law. the issue of criminal law development can actually be seen from various aspects. first, it can be seen from “criminal law policy in a broad meaning" that includes criminal law policy in the field of material criminal law, formal criminal law, and criminal law enforcement policies.13 updates from such an angle provide direction so that penal reform is carried out in three fields, namely material, formal, and criminal law enforcement policies. the renewal of the national criminal law is the government’s effort to update the existing criminal law policy. the criminal code is a form of criminal law policy that is still in effect today—renewing the criminal code thereby updating the criminal law policy. one form of reform of the criminal law policies is drafting the draft criminal code (rkuhp). in the upcoming rkuhp, customary law or the law that lives in the community will become one of the sources of law to declare an act as a crime. the recognition that the law that lives in society as a source of law is carried out by formulating the principle of material legality. the material legality principle is an extension of the formal legality principle currently in force. this is contained in article 2 paragraphs (1) and (2) of the rkuhp (draft of the criminal code): 1. the provisions as referred to in article 1 paragraph (1) do not reduce the enactment of the law that lives in society which determines that a person deserves to be punished even though the act is not regulated in the legislation. 12 satjipto rahardjo, negara hukum yang membahagiakan rakyatnya, (yogyakarta: genta publishing, 2009), hlm. 81. 13 barda nawawi arief, bunga rampai kebijakan hukum pidana: perkembangan penyusunan konsep kuhp baru, (jakarta: kencana, 2011), hlm. 28. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 429 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. the law that lives in society as referred to in paragraph (1) applies in the place where the law lives and as long as it is not regulated in this law and is in accordance with the values contained in pancasila, the 1945 constitution of the republic of indonesia, human rights, and general legal principles recognized by civilized society. in the academic draft of the rkuhp it is stated that the reasons for the recognition of the unwritten law are, among others based on:14 1. article 5 (3) sub b emergency law number 1 of 1951 which essentially regulates an act according to living law must be considered a criminal act, but has no basis in the civil code, it is then considered punishable by a law not exceeding three months in prison and/or a fine of five hundred rupiahs, which serves as a substitute law. suppose the customary law imposed in the judge's opinion exceeds the confinement or fine referred to above, in that case, the defendant may be subject to a substitute sentence of up to 10 years in prison, with the understanding that the customary punishment is no longer compatible with the times as mentioned above. 2. resolution in the field of criminal law, 1st national law seminar 1963. the fourth point states that "what are seen as evil acts are acts which are formulated by their elements in this criminal code or in other legislation. this does not close the door for the prohibition of actions according to living customary law and does not hinder the formation of the aspired society, with customary sanctions that can still be in accordance with the nation's dignity. while the eighth point resolution states: "elements of religious law and customary law are woven into the criminal code". 3. law on judicial power (law no. 14 of 1970 as amended by law 35 of 1999 and law no. 4 of 2004, and lastly by law no. 48 of 2009). 14 academic draft of the rkuhp, p. 26-27. http://journal.unnes.ac.id/sju/index.php/jils 430 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils article 14 (1): the court may not refuse to examine and adjudicate a case submitted on the pretext that the law is not/less clear, but is obliged to examine and adjudicate it. article 23 (1): all court decisions in addition to containing the reasons and grounds for the decision, must also contain certain articles from the relevant regulations or unwritten legal sources. article 27 (1): judges as law and justice enforcers are obliged to explore, follow and understand living legal values. 4. 4th national law seminar 1979 in the sub b. ii report regarding the “national legal system”, it is stated, among other things: the national legal system must be in accordance with the needs and legal awareness of the indonesian people “……national laws shall as far as possible be in written form. in addition, unwritten law remains part of national law.” the formulation of the principle of material legality in the rkuhp basically has the following objectives: 1. formulate a criminal law that is in line with the constitutional mandate the written constitution in indonesia is contained in the 1945 constitution of the republic of indonesia. the 1945 constitution is the fundamental law in statutory regulations. this means that the 1945 constitution contains the basic norms for the establishment of legislation as the source of law for the establishment of legislations under the 1945 constitution of the republic of indonesia. the constitution of the republic of indonesia requires that the establishment of criminal law in indonesia must pay attention to: a. criminal law as an instrument to attain national purposes criminal law is no different from the law in general; it is built and developed to achieve a particular goal. in the context of law in indonesia, law is made as a means to http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 431 available online at http://journal.unnes.ac.id/sju/index.php/jils achieve national goals as contained in the fourth paragraph of the preamble to the constitution of the republic of indonesia which reads as follow: “..which shall protect the whole indonesian nation and the entire native land of indonesia and to advance the public welfare, to educate the life of the nation, and to participate in the execution of world order which is by virtue of freedom, perpetual peace and social justice,..” criminal law must be oriented to achieve the national goals as mentioned above. when achieved, criminal law is said to be an instrument to achieve social defense as well as social welfare. b. criminal law as the basis for imposing criminal article 1 paragraph (3) of the 1945 constitution states that indonesia is a state of law. this implies that criminal penalties must be based on law, which in this case is criminal law. criminal law as the basis for imposing a crime indeed cannot be interpreted as only written law as contained in article 1 paragraph (1) of the current criminal code; of course, it must also include unwritten law or customary criminal law that applies in customary law communities. c. criminal law must recognize the law that lives in society as a source of law article 18b paragraph 2 of the 1945 constitution as quoted above states that the state shall recognize and respect entities of the adat law societies along with their traditional rights to the extent they still exist and are in accordance with the development of the society and the principle of the unitary state of the republic of indonesia, which shall be regulated by laws. customary law needs to be permitted the recognition by criminal law to impose a criminal sentence on someone. d. criminal law must ensure human rights http://journal.unnes.ac.id/sju/index.php/jils 432 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils chapter xa of human rights in the 1945 constitution shows that indonesia is a country that recognizes and upholds human rights. human rights provisions in the 1945 constitution guarantee that all fields of law must accommodate the protection of these rights. criminal law, in terms of imposing a sentence on someone must also pay attention to human rights. furthermore, the mandate to create a criminal law that protects human rights has also received universal recognition. this is marked by the increasing number of instruments on human rights agreed upon by the global community, providing a basis for justification for each country to further realize the nuances of respect, fulfillment, and protection of human rights in the legal (criminal) system. various criminal instruments related to human rights issues include: standard minimum rules for the treatment of prisoners (ohchr 1955); principles of medical ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment (un medical ethics, 1982); convention against torture (uncat, 1984); body of principles for the protection of all persons under any form of detention or imprisonment (principles of detention, 1988); united nations standard minimum rules for noncustodial measures (the tokyo rules, 1990); declaration on the protection of all persons from enforced disappearance. general assembly resolution 47/133 (undpped, 1992); united nations standard minimum rules for the administration of juvenile justice (the beijing rules, 1985); http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 433 available online at http://journal.unnes.ac.id/sju/index.php/jils declaration of basic principles of justice for victims of crime and abuse of power (unvcap, 1985); united nations rules for the protection of juveniles deprived of their liberty. adopted by general assembly resolution 45/113 of 14 december 1990. human rights are rights ingrained in every person, without exception for indigenous peoples. the rights owned by indigenous peoples are also part of human rights. the united nations has established a "declaration on the rights of indigenous peoples" or often abbreviated as undrip (united nations declaration on the rights of indigenous peoples) or the united nations declaration on the rights of indigenous peoples. undrip is a comprehensive human rights document that regulates the rights of indigenous peoples. it contains the minimum standards that every member of the united nations must meet to ensure the rights of indigenous peoples. moving on to the provisions of undrip, nz human rights stated the rights of indigenous peoples, one of which is their own institutions, laws, and customs.15 this emphasizes that criminal law provides space for customary criminal law. 2. formulate a criminal law that accommodates the mandate of the prevailing laws and regulations in indonesia legislation in indonesia has provided a normative basis for formulating the principle of material legality in the rkuhp. these regulations include: a. emergency law of the republic of indonesia number 1 of 1951 concerning temporary measures to organize the unity of powers and procedures for civil courts article 5 paragraph 3 sub b: an act according to living law must be considered a criminal act, but has no basis in the civil code, it is then 15 nz human rights, the rights of indigenous peoples: what you need to know, nz human rights, new zealand. http://journal.unnes.ac.id/sju/index.php/jils 434 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils considered punishable by a law not exceeding three months in prison and/or a fine of five hundred rupiahs, which serves as a substitute law. suppose the customary law imposed in the judge's opinion exceeds the confinement or fine referred to above, in that case, the defendant may be subject to a substitute sentence of up to 10 years in prison, with the understanding that the customary punishment is no longer compatible with the times as mentioned above, and that an act which according to living law must be considered a criminal act and which has an appeal in the civil code, is considered punishable by the same punishment as the sentence of appeal which is most similar to that criminal act. b. law number 48 of 2009 on judicial power several provisions of the article in the law on judicial power mandate the existence of unwritten law as a source of law. article 5 paragraph (1) judges and constitutional judges are obliged to explore, follow, and understand the legal values and sense of justice that live in society. furthermore, article 50 (1) also mentions that the court's decision must contain the reasons and basis for the decision and contain specific articles from the relevant legislation or unwritten legal sources that are used as the basis for adjudicating. 3. respond to the need for legal development that is in line with the values that live in a society one of the critical approaches in criminal law policy is the socalled value-oriented approach. a value-oriented approach is an approach inherent in every criminal law policymaking. criminal law norms are basically the embodiment of the values adopted by a nation. therefore, in formulating criminal law norms, the consideration of values that live in society cannot be separated. the principle of material legality in the rkuhp is a form of policy formulation that considers the values of society. in other http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 435 available online at http://journal.unnes.ac.id/sju/index.php/jils words, the principle is part of the renewal of criminal law in accordance with the values that live in society. regarding this, barda nawawi arief stated:16 criminal law reform is essentially an effort to review and reassess ("reorient and re-evaluate”) the socio-political, socio-philosophical, and socio-cultural values that underlie and provide content for the normative and substantive content of the aspired criminal law. it isa not a renewal (“reform”) of criminal law, if the value orientation of the aspired criminal law (eg the new criminal code) is the same as the value of the old criminal law inherited from the colonialists (the old criminal code or wvs). customary law communities are part of the indonesian nation which in carrying out their daily life is based on customary law that is built on the values believed by the customary law community and does not conflict with pancasila and the 1945 constitution. therefore, it must be accommodated in the principle of material legality. which will apply in the future. conclusion penglipuran customary law community is part of the indonesian nation, which has the right to “their own institutions, laws and customs”a part of human rights that need to be respected, protected, and fulfilled by law, including criminal law. it is also stated explicitly on article 18b paragraph (2) of the 1945 constitution that requires criminal law to initiate a room for the application of customary criminal law as an unwritten law to regulate customary offenses. however, due to the principle of legality as stated in article 16 barda nawawi arief, kebijakan hukum pidana: perkembangan penyusunan konsep kuhp baru, (jakarta: kencana, 2008), p. 30. http://journal.unnes.ac.id/sju/index.php/jils 436 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 1 paragraph (1) of the criminal code, this initiation cannot be implemented. this contradiction makes the implementation of customary criminal law a dilemma. moreover, the current policy reform regarding the principle of legality only accommodates written law as the basis for sentencing. in the future, it is necessary to formulate the principle of material legality that allows unwritten law or customary law as a source to determine an offense. this has been formulated in articles 2 (1) and (2) of the rkuhp, which reads (1) the provisions as referred to in article 1 paragraph (1) do not reduce the enactment of the law that lives in a society that determines that a person deserves to be punished even though the act is not regulated in the law. laws and regulations. (2) the law that lives in society as referred to in paragraph (1) applies in the place where the law lives, and as long as it is not regulated in this law and is in accordance with the values contained in pancasila, the 1945 constitution of the republic of indonesia. human rights and general legal principles are recognized by civilized society. references arief, b. n. (2011a). bunga rampai kebijakan hukum pidana: perkembangan penyusunan konsep kuhp baru. jakarta: kencana. arief, b. n. (2011b). perkembangan sistem pemidanaan di indonesia. semarang: penerbit pustaka magister. arief, b. n. (2012). kebijakan formulasi ketentuan pidana dalam peraturan perundang-undangan. semarang: pustaka magister. bulmer, e. (2017). what is a constitution? principles and concepts. sweden: international idea. graham, j., & marques, e. c. (2000). understanding constitutions: a roadmap for communities. canada: institute on governance ottawa. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 437 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesia (2001). bali province regional legislation number 3 of 2001 concerning desa pakraman. state gazette of the bali province number 29 d series number 29. indonesia. (1945). the 1945 constitution of the republic of indonesia. indonesia. (2011). law number 12 of 2011 on legislation making. state gazette of the republic of indonesia of 2011 number 82. indonesia. (2012). constitutional court decision number 35/puux/2012. indonesia. (2019). bali province regional legislation number 4 of 2019 concerning desa adat. state gazette of the bali province of 2019 number 4. indonesia. the criminal code. state gazette of the republic of indonesia number 3258. ohchr. (1955). standard minimum rules for the treatment of prisoner. principles of detention. (1988). body of principles for the protection of all persons under any form of detention or imprisonment. rahardjo, s. (2009). negara hukum yang membahagiakan rakyatnya. yogyakarta: genta publishing. sahetapy, j. e. (2012). reformasi hukum harus mengejawantahkan pancasila, in komisi yudisial republik indonesia, dialektika pembaruan sistem hukum nasional. jakarta: sekretariat jenderal komisi yudisial republik indonesia. sudarto, s. (2018). hukum pidana i. semarang: yayasan sudarto. the beijing rules. (1985). united nations standard minimum rules for the administration of juvenile justice. the tokyo rules. (1990). united nations standard minimum rules for non-custodial measures. un medical ethics. (1982). principles of medical ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment. uncat. (1984). convention against torture. undpped. (1992). declaration on the protection of all persons from enforced disappearance. general assembly resolution 47/133. http://journal.unnes.ac.id/sju/index.php/jils 438 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils united nation. (1990). united nations rules for the protection of juveniles deprived of their liberty. adopted by general assembly resolution 45/113 of 14 december 1990. unvcap. (1985). declaration of basic principles of justice for victims of crime and abuse of power. http://journal.unnes.ac.id/sju/index.php/jils attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23939d5220cd • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare 129 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 volume 4 issue 01 may 2019 jils 4 (1) 2019, pp. 129-142 issn (print) 2548-1584 issn (online) 2548-1592 progress and decline of legal thought: excorruptor as a legislative candidate (analysis of general election commission regulation (pkpu) no. 20/2018) emanuel raja damaitu emanuel raja damaitu faculty of law, widya karya malang catholic university jl. bondowoso 2-malang no.2, gading kasri, klojen, kota malang, jawa timur 65115  emanuel_fh@widyakarya.ac.id table of contents introduction ………………………………………………….….. 130 suitability election commission regulation no. 20 of 2018 with the normative rules formation legislation ……………………………………………………….... 133 the provisions of article 7 clause h election commission regulation no. 20 of 2018 not violate rights of citizens ……………………………………………….. 136 conclusion ………………………………………………………… 140 references …………………………………………………………. 140 doi 10.15294/jils.v4i01.29690 copyright © 2019 by author(s) this work is licensed under a creative commons attributionsharealike 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. jils (journal of indonesian legal studies) mailto:emanuel_fh@widyakarya.ac.id 130 http://journal.unnes.ac.id/sju/index.php/jils emanuel raja damaitu jils 4 (1) may 2019, 129-142 article info abstract submitted on february 2019 approved on april 2019 published on may 2019 kpu regulation number 20 of 2018 is one of the rules that must be adhered to regarding legislative candidates who will be registered as participants in the legislative elections. the kpu regulation was decided by the supreme court as a statutory regulation that is not in accordance with the laws and regulations related to the election on it. in fact, normatively, the provisions in the kpu regulation are in accordance with the rules for the formation of legislation. normatively, banning legislative candidates who are former prisoners of corruption is a progressive effort from the government to create a government free of corruption. the prohibition does not violate the concept of human rights protection. keywords: ex-corruptor, legislative candidate, kpu regulation, human rights how to cite (chicago manual style) damaitu, emanual raja. ―progress and decline of legal thought: excorruptor as a legislative candidate (analysis of general election commission regulation (pkpu) no. 20/2018)‖, jils (journal of indonesian legal studies), 4 (1), 2019: 129-142. introduction democracy is one of the principles of the rule of law and indonesia legally in article 1 paragraph 3 of the 1945 constitution of the republic of indonesia (hereinafter abbreviated as the 1945 constitution of the republic of indonesia, uud 1945) states explicitly that the state of indonesia is a rule of law. democracy is a value of life in a good society, a pattern of social interaction, and is the result of a compromise of the interaction of interests in the form of public policy (sanit 2015). democracy is also widely mentioned as a system of government originating from the people or in short based on popular sovereignty. the real form of a democratic system of government is through elections. democratic political systems can be seen from the most powerful collective decision makers in the system and are elected through general elections (huntington 1997). therefore elections become a means of carrying out people's sovereignty based on indirect democracy or representation. the decision-making process in the form of public policy does not involve the 131 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 people directly but is represented by those who have been elected in the general election. sirajudin & winardi (2015) said that to get a consolidation of substantial democracy is through the electoral system. this is important because it is a means or tool for the people to select their representatives to make decisions. political parties also have an important role in democratic law. the basic function of the political party itself according to subekti (sirajudin & winardi 2015) is to lead to the formulation and implementation of public policies that will regulate society. political parties as organized groups aim to gain political power and fight for political positions to carry out the policies they make. the sovereignty of the people as stated in article 2 paragraph 1 of the 1945 constitution of the republic of indonesia must be manifested in a tangible form through a direct, general, free and confidential general election. to carry out such elections, an independent election organizer is needed. independence of election organizers is needed because elections are an instrument or means that can be engineered to achieve good goals while being manipulated for purposes that are contrary to good intentions (sirajudin & winardi 2015). electoral institutions are those responsible for implementing elections smoothly and fairly. electoral institutions appointed by the constitution are the general election commission as stated in chapter viib article 22e paragraph 5 of the 1945 constitution of the republic of indonesia. as an election organizing institution guaranteed and protected by the constitution, kpu is categorized as a state institution that has constitutional importance (asshiddiqie 2006). as an election organizer, the general election commission (kpu) has the task of compiling a kpu regulation for each stage of the election (art 12(c) law no.7 of 2017). in addition, it was also given the authority to establish kpu regulations which had been followed so as to become a regulation that applies to each eligible participant (art 13(b) law no.7 of 2017). electoral institutions appointed by the constitution are the general election commission as stated in chapter viib article 22e paragraph 5 of the 1945 constitution of the republic of indonesia. as an election organizing institution guaranteed and protected by the constitution, kpu is categorized as a state institution that has constitutional importance (asshiddiqie 2006). as an election organizer, the general election commission (kpu) has the task of drafting a kpu regulation for each stage of the general election. in addition, it was also given the authority to establish kpu regulations which had been followed so as to become a regulation that applies to each eligible participant. as a concrete manifestation of the duties and authorities given by the law, the kpu issued a kpu regulation for the stages of legislative elections in 2019. in early july 2018, the ministry of law and human rights has enacted election commission regulation number 20 of 2018 concerning the nomination of legislative members prohibit the nomination of former drug 132 http://journal.unnes.ac.id/sju/index.php/jils emanuel raja damaitu jils 4 (1) may 2019, 129-142 dealer prisoners, child sex crimes, and corruption (andayani 2018). according to the commissioner of the commission, hashim ash’ari, the establishment of this commission regulation is to support the president joko widodo program to combat corruption (andayani 2018). this is also a breakthrough from the kpu to minimize the number of corruption committed by legislators in previous periods. commission regulation concerning a ban on convicted legislators nominate corruption is getting opposition from various parties. according to bambang soesetyo (dza 2018) as chair of the republic of indonesia parliament, the general election commission regulation number 20 of 2018 is contrary to the prevailing laws and regulations. further, he states that the regulation depriving a person's rights to be elected and a government agency should not deprive citizens. a similar reason was also stated by refly harun that the election commission regulation eliminated the constitutional rights of people intentionally and consciously (chairunnisa 2018). rejection was also expressed by the minister of law and human rights, yasonna laoly (ihsanudin 2018), that regulation election commission is contrary to the provisions of act no. 17 of 2017 on general elections which states that an ex-convict who was serving a sentence for five years or more, may nominate themselves on the condition that they are concerned to announce their status as prisoners to the public (art 240(1)g law no.7 of 2017). jimly asshiddiqie (nugraheny 2018) argues differently when the general election commission regulation has not been promulgated in the state gazette. according to him, the election commission can enact its own draft election commission regulation nomination of legislative candidates are otherwise promulgated by the ministry of law and human rights. furthermore, it was said that there should be no intervention in the enactment of one of the technical rules of the election from the government. at the end of the promulgation of the general election commission regulation, widodo ekatjahjana, director general of laws and regulations at the ministry of law and human rights, stated that the enactment of the election commission regulation was for the sake of democracy and election administration so as not to be disturbed (gatra 2018). therefore the author wants to analyze further the general election commission regulation number 20 of 2018 concerning the nomination of members of the house of representatives, provincial regional representatives, and regency /city regional representatives. is the general election commission regulation number 20 of 2018 in accordance with the normative rules for the formation of legislation in indonesia? next, the legal issue is whether the provisions of article 7 letter h election commission regulation no. 20 of 2018 violate the rights of citizens? the method used to analyze the problem is to use normative research methods. the study is conceived as what is written in the legislation and become a benchmark in the society behaves towards what is considered proper (efendi & ibrahim 2018). soerjono soekanto and sri mamudji (efendi 133 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 & ibrahim 2018) mention that normative research is conducted legal research by examining the literature that includes general principles of law, the legal systematics, synchronization of law, comparative law and legal history. the approach used to discuss the problems in this study is the legislative approach, conceptual approach, analytical approach, historical approach, and philosophical approach. suitability election commission regulation no. 20 of 2018 with the normative rules formation legislation the law becomes valid if it is made by an authorized institution and is sourced and based on higher norms (indrati s. 2016). hans nawiansky (indrati s. 2016) complements this opinion that legal norms are not only layered and tiered, but the legal norms of a country are also grouped into four major groups. the division of groups by hans nawianski includes staatfundamentalnorm, staatsgrundgesetz, formell gesetz, and verordnung & autonome satzung. the normative rules for the establishment of attributes in indonesia are attributive to the constitution which is regulated by law number 12 of 2011 concerning the establishment of legislation. the hierarchy of laws and regulations in force in indonesia is regulated in article 7 of the law establishing legislation. while the general election commission regulation fulfills the elements stipulated in the provisions of article 8 paragraph 1 of the puu law, which includes regulations made by commissions that are of the same level established by law. the general election commission as the organizer of the general election gets the attributive authority of the constitution which is national, permanent, and independent (uud 1945, art 22 e(5)). to hold general elections, the general election commission has the duties and authorities granted by the election law. one of the duties and authorities of the general election commission is to draft and stipulate the rules of the general election commission for each stage of the election (art. 12c, 13b, law no. 7 of 2017). the general election itself consists of 23 stages including at the stage of election dispute resolution for the legislature and also the election of the president and vice president (―kpu-portal publikasi pemilihan umum 2019‖ t.t.). one of the stages in the election is the preparation of general election commission regulations and the nomination of members of the house of representatives, regional representative council, provincial regional representative council, and regency/city regional representative council and nomination of president and vice president. so based on the duties and authorities given by the election law, the general election 134 http://journal.unnes.ac.id/sju/index.php/jils emanuel raja damaitu jils 4 (1) may 2019, 129-142 commission has fulfilled the formal requirements or juridical enforcement of the establishment of legislation. bagir manan (sirajudin 2016) said that the first requirement in juridical or normative enactment of legislation is the existence of authority from the legislators. next, the second condition mentioned by bagir manan (sirajudin 2016) is about the suitability between the form or type of legislation and the material content. every formation of legislation must be based on the principle of the formation of good legislation, one of which is the principle of conformity between types, hierarchy, and material content (art 5 c law no. 12 of 2011). the purpose of this statement is that every formation of legislation must really pay attention to the material content that is appropriate and in accordance with the type and hierarchy of legislation. in the law on the establishment of laws and regulations, there are two types of legislation, namely legislation in and outside the hierarchy. the types of legislation stipulated in article 7 paragraph (1) of the law establishment of legislation is a type of legislation in the hierarchy. whereas the opposite type of legislation that is outside the hierarchy is regulated in the provisions of article 8 paragraph (1) of the law on the establishment of legislation. the general election commission regulation is a statutory regulation that is outside the hierarchy because it is formed by a commission that is formed by the act or on the basis of an order of the act. as a statutory regulation that includes types outside the hierarchy, to determine the content of the material, it must be known in advance the level of the institutions that make up the regulation in the state organ structure. the general election commission is an institution formed by the constitution to hold elections that are national, permanent and independent. jimly asshidiqie (asshiddiqie 2005a) also said that the general election commission received the title as an independent and self-regulatory body where the institution is not only an institution that makes regulations that apply in its work area but also implements, supervises and sanctions parties who violate these rules. the regulations made by the general election commission are, of course, regulations relating to the general election or more precisely as a regulation that explains technically the election law. thus, the content of the provisions of the general election commission may not exceed what is stipulated in the election law. in the formulation of article 4 paragraph (3) kpu regulation number 20 year 2018 concerning the nomination of members of the house of representatives, the provincial people's legislative assembly, and the regency/city people's representative council 1 , it states that the selection of 1 before getting a judicial review decision from the supreme court speaker, the formulation in this article gets a lot of debate. after obtaining a judicial review decision from the supreme court, the formulation of this article has been written off and declared invalid. the focus of the research study is the formulation of judicial revieew article before the supreme court to indicate the synchronization and harmonization of laws with the legislation on it 135 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 candidates must be democratic and open and not including former drug dealer convicts, child sex crimes and corruption. then, this article is strengthened and clarified again in article 7 paragraph (1) letter g the same general election commission regulation that the legislative candidate has never been convicted based on a court decision that has a permanent legal force which is punishable by imprisonment of five years or more. both formulations of this article are derivatives that provide legal certainty and explanation of article 240 paragraph (1) letter g of law number 7 of 2017 concerning general elections. so that it has followed the rules in article 6 paragraph (1) of law number 12 of 2011 concerning the establishment of legislation which regulates the principles in the material content of legislation. the third condition according to bagir manan (sirajudin 2016) is the necessity to follow a certain procedure. the ordinance is meant as has been stipulated in the law on the establishment regulation legislation: planning, preparation, discussion, approval or determination, and enactment. in every process of the formation of legislation, the election commission in making the election commission's regulations are in accordance with the provisions set forth in act establishment of the regulation legislation, and that in each of these processes also involve the parties involved in organizing the elections including the parliament, the ministry of law and ham, etc 2 . but the weakness contained in the act formation of legislation related to these issues is not regulated clearly how the process promulgate regulations made by the electoral commission. so, if based on the opinion of jimly asshidiqie that the general election commission is a self-regulated body, then the general election commission can automatically enact the rules it has made. the fourth condition according to bagir manan (sirajudin 2016) is not in contravention of legislation that is at a higher level. conformity between the general election commission regulations and higher legislation can be seen in the consideration section of the regulation, namely law number 7 of 2017 concerning general elections. more precisely is based on the provisions of article 249 paragraph (3) and article 257 paragraph (3) of the election law which states that further provisions regarding verification of legislative candidates will be regulated in the general election commission regulations. on the substance of the regulatory commission's election, lays out more details about the provisions of legislative candidates who cannot follow 2 the general election commission has a very important role in realizing a democratic legal state and also has constitutional importance, the general election commission has full authority in carrying out its functions without getting intervention by other institutions. this position also strengthens the position of the general election commission as an independent and self regulatory body. thus, although without having to communicate with other parties, the general election commission can still formulate, compile and enact a regulation of the general election commission for the smooth running of democratic elections 136 http://journal.unnes.ac.id/sju/index.php/jils emanuel raja damaitu jils 4 (1) may 2019, 129-142 the contestation of election is under threat of criminal prosecution of more than 5 years contained in the electoral law 3 . more complete these provisions contain several elements: (a) have never been imprisoned; (b) based on court decisions that have obtained permanent legal force; (c) committing a crime that is threatened with imprisonment of 5 (five) years or more; and (d) present to the public. author sharpens the third element punishable by imprisonment. the phrase "threatened" consists of the basic word "threat" has three meanings when viewed in a large dictionary of indonesian. first, state the intention (intention, plan) to do something that is harmful, difficult, troublesome, or harmful to the other party. second, give a sign or warning about the possibility of a disaster that will occur. third, is expected to befall someone or something. the precise meaning if linked to the provisions of previous legislation is the third meaning. someone who is threatened with imprisonment of 5 (years) or more does not mean that the criminal sentence given must be 5 years or more, but the threat of punishment formulated in a statutory regulation is that period. the crime of corruption as regulated in law number 31 of 1999 jo law no. 20 of 2001 provides a penalty of more than five years, even up to the threat of life imprisonment. in narcotics criminal acts as drug dealers, they are threatened with criminal penalties of more than five years (chap. xv law no. 35 of 2009). for any child sex crimes to law threatened with imprisonment of at least five (5) years (art. 81 law no. 35 of 2014). thus, it can be said that the election commission regulation is to clarify several criminal acts which are subject to criminal penalties of more than 5 (five) years. in addition, some of the crimes mentioned in this election commission regulation are categories of extraordinary crime. the provisions of article 7 clause h election commission regulation no. 20 of 2018 not violate rights of citizens law is a tool to regulate the subject of legal obligations and obtain their rights properly (nasution 2014). indonesia in its constitution stated explicitly as a state based on law (art 1 (3) uud 1945). thus indicating that the indonesian state adheres to the principles of the rule of law. jimly asshidiqie (2005a) argues that the idea of a state of the law is related to the concept of nomocracy, which is the determining factor for all activities in administering 3 see more fully in article 240 paragraph 1 letter g of law number 7 of 2017 concerning general elections in conjunction with article 7 letter g of the general election commission regulation number 20 year 2018 concerning the nomination of members of the people's legislative assembly, provincial people's representative council and regional people's representative council regenc /city 137 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 power is law. the indonesian government has powers that are limited by the constitution and not justified in acting arbitrarily. the rule of law will be further enhanced with a democratic system of government, a government based on the sovereignty of the people. the democratic system of government 4 shows that all citizens participate ruled either by a legislative, as well as outside the people's representative institutions in determining the government's political decisions (nasution 2014). freedom and equality in a democratic system of government aim to create good and clean governance. the principle of the rule of law carried out by indonesia is a legal state based on pancasila 5 . every government activity, the formation of legislation, or other policies must have pancasila. the aim of the state of pancasila law is not only to create good and clean governance but also to realize the nation's goal of increasing public welfare 6 . this general welfare can be said as the basic right of all indonesian citizens. so that it becomes the government's main obligation to realize and protect. speaking of basic rights will also be related to views on human rights. understanding of human rights is still very too narrow if it defines that human rights are a natural right, a right granted to humans since he was born (nasution 2014). such understanding will direct a view to safeguard human interests individually and shifting the paradigm of protecting the people individually. the development of the concept of human rights has always evolved to find a concept where the implementation is in accordance with the characteristics and character of the community 7 . the basic concept of human rights also raises the recognition of the right of every person to social and international order in exercising their rights and freedoms to the restrictions 4 democracy is also an idea or way of thinking that prioritizes the equal rights, obligations and treatment of all citizens in all laws and government. democracy also requires an openness with the principle of fair play to give birth to people's participation in running the government 5 the state law of pancasila is a country based on the ideals of the pancasila law. legal ideals contain the meaning that the law as a rule of public behavior rooted in ideas, feelings, intentions, inventions, and thoughts of the community itself. the ideals of the pancasila law are based on the value of the one and only god, respect for human dignity, national insight and insight, equality and feasibility, social justice, moral and noble character, and participation and transparency in the decision making process. 6 the state law of pancasila is a country based on the ideals of the pancasila law. legal ideals contain the meaning that the law as a rule of public behavior rooted in ideas, feelings, intentions, inventions, and thoughts of the community itself. the ideals of the pancasila law are rooted in the value of the supreme godhead, respect for human dignity, national insight and insight into the archipelago, equality and feasibility, social justice, moral and noble character, and participation and transparency in the decision making process 7 the development of thinking about human rights began with the existence of the universal declaration of human rights which was formulated by the united nations organization in 1948. the results of the discussion at that time were written documents produced by all nations representing various cultural backgrounds, beliefs, ideologies and political orientation. 138 http://journal.unnes.ac.id/sju/index.php/jils emanuel raja damaitu jils 4 (1) may 2019, 129-142 set by law (nasution 2014). daniel s. lev said that restrictions on these rights must be in accordance with the parameters of a democratic society, not according to the parameters of an authoritarian society or even those who take refuge in democratic masks (lev 1970). human rights are a basic right that is active or teleological in a democratic understanding (simanjuntak 2017). the purpose of this statement is that human rights are rights that must be carried out by citizens both personally and jointly in a legitimate association to realize common interests. human rights will not be realized without the participation of the community to create, oversee, and enforce the laws that have been made. the most obvious implementation of human rights is the implementation of general elections specifically regulated in chapter viib article 22e of the 1945 constitution of the republic of indonesia. in this provision the active standard of human rights consists of five things: (a ) directly, publicly, freely, confidentially, honestly and fairly; (b) political parties as participants; (c) individuals for the regional representative council; (d) general election commission; and (e) regulated by law (simanjuntak 2017). the series of electoral process, in essence, is to fill all positions that are at the peak of the state, namely the legislature and the executive. the selection of legitimate state officials through the general election has the main task of making and implementing the law. the task of making law is always through a practical political process, but after the law is made, the whole law must be subject to the law made in advance. although in reality, the legislature as a legislator makes more political decisions than carrying out proper legal work (mahfud m.d 2012). political parties as election participants, in the constitutional system of the republic of indonesia, are required to pass selection according to qualifications based on the conditions set out in the election law. in addition, in the constitution, it is also stated that the institution appointed as the executor of the general election is the election commission. election supervisory bodies are formed by the state as an institution that oversees the performance of electoral commissions nikolas simanjuntak (simanjuntak 2017) suggests there are three justifications that political parties have a role and a very important function in a single democratic system. first, politics is for the management of many things both people and interests, positions, and state money. second, there are no alternative institutions that are able to carry out these affairs simultaneously. third, all political process practices must be carried out by all politicians both inside and outside political parties. therefore, it can be concluded that the political duties and responsibilities of political actors as a 139 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 process of hominization and humanization to realize a political performance as the best service work 8 . human rights become positive rights in two forms, namely moral and law, both of which are the basis of being and acting from a human being in living together socially (simanjuntak 2017). moral and law become a value of humanity as an effort to glorify, promote, and promote human civilization. law is present to treat and maintain moral enforceability. so that the legal position towards morals is a real and valid instrument in society to form human values. in this state, the moral and legal context it was then used as a guide to implementing the country's basic objectives which were called state achievements 9 . corruption is the opposite situation from the achievements of the country. simanjuntak (2017) said that corruption is a human crime. corruption 10 has greater destructive power because it uses state money originating from the people and its use for community services, deflected for the personal benefit of a state official. the entire offense stipulated in law number 31 of 1999 jo law number 20 of 2001 if it is proven that human rights violations will occur in article 28c, article 28d, and article 28h of the constitution of the republic of indonesia. violations committed by corruptors should get the most severe punishment more than punishment for ordinary criminals. appropriate punishment has been formulated by the electoral commission to prohibit the ex-convict corruption to be a candidate in the legislative elections this 2019 period. a corrupt person who has violated the fundamental responsibility of the state should not be included as a legislative candidate in the general election contestation the formulation in article 7 letter h of the regulation on the number 20 general election commission in 2018 basically does not violate human rights. this is in line with the constitutional provisions stipulated in article 28i paragraph (4) of the constitution of the republic of indonesia which states that protection, promotion, enforcement and fulfillment of human rights are 8 homonization is a general humanitarian process by including humans in a very minimal scope of human life. this process requires an advanced process through further education to humanize humans specifically in the process of humanization. the process of humanization is the process of appointing humans to a higher culture in the advances of culture and science. hominization and humanization are an integral process to realize a better human life and must be carried out simultaneously and at the same time in a broad and deep scope for a long period of time 9 it is called an achievement because the government gets the power and authority to rule from the people on the basis of contracts or agreements. that on the one hand must provide the promised achievements. this contract is referred to as a political contract, namely a contract made in a political arena that is only moral in its efforts to fulfill these promises. 10 in law number 31 of 199 in conjunction with law number 20 of 2001 there are seven categories of offenses in corruption, namely state losses, bribery, embezzlement in positions, extortion, fraudulent acts, correct interests and gratuities 140 http://journal.unnes.ac.id/sju/index.php/jils emanuel raja damaitu jils 4 (1) may 2019, 129-142 the responsibility of the state, especially the government. the general election commission as part of a state organization tries to uphold the social rights of the indonesian people by banning former corruption convicts. it is precisely the prohibition that is a clear proof that the government is also present in upholding the rights of citizens who are the fundamental responsibility of the state, namely forming a government that is clean and free from corruption. conclusion it is emphasized that, general election commission regulation number 20 of 2018 concerning the nomination of members of the people’s legislative assembly, provincial regional representatives, regency/city regional people's representatives council complies with the normative rules for the establishment of legislation in indonesia. in the normative rules, there are unclear rules regarding the process of enacting a statutory regulation that is outside the hierarchy as stipulated in article 8 paragraph (1) of law number 12 of 2011 concerning the establishment of legislation. so that the general election commission as a state organ responsible for the legitimacy of democracy in indonesia has the right to renegotiate the regulations it makes to be in harmony with indonesia's democratic ideals. the next conclusion is that the ban on former corruptors as members of the legislative candidates does not violate the human rights of indonesian citizens. corruption is a crime or crime against humanity which limits the social development of the community which is the responsibility of the state. therefore, the ban on former corruptors is actually the enforcement of human rights to achieve indonesia's democratic ideals. references andayani, dwi. 2018. ―pkpu 20/2018 diundangkan, kpu: program jokowi bersih-bersih korupsi.‖ detiknews. 4 july 2018. https://news.detik.com/read/2018/07/04/135316/4097709/10/pkpu -202018-diundangkan-kpu-program-jokowi-bersih-bersih-korupsi. asshiddiqie, jimly. 2005a. hukum tata negara dan pilar-pilar demokrasi. jakarta: konstitusi press. ———. 2005b. konstitusi dan konstitusionalisme indonesia. jakarta: konstitusi press. 141 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negara republik indonesia tahun 1945), the constitution of republic indonesia law no. 31 of 1999 concerning corruption eradication (undang-undang nomor 31 tahun 1999 tentang pemberantasan tindak pidana korupsi) law no. 39 of 1999 concerning human rights (undang-undang nomor 39 tahun 1999 tentang hak asasi manusia) law no. 20 of 2001 concerning to amendments to law number 31 of 1999 concerning eradication of corruption crimes (undang-undang nomor 20 tahun 2001 tentang perubahan atas undang-undang nomor 31 tahun 1999 tentang pemberantasan tindak pidana korupsi) law no. 35 of 2009 concerning to narcotics (undang-undang nomor 35 tahun 2009 tentang narkotika) law number 35 of 2014 concerning amendments to law number 23 of 2002 concerning child protection (undang-undang nomor 35 tahun 2014 tentang perubahan atas undang-undang nomor 23 tahun 2002 tentang perlindungan anak) law number 7 of 2017 concerning general elections (undang-undang nomor 7 tahun 2017 tentang pemilihan umum) general election commission regulation number 20 of 2018 concerning nomination of members of the people's legislative assembly, provincial regional representative council, regency/city regional representative council (peraturan komisi pemilihan umum nomor 20 tahun 2018 tentang pencalonan anggota dewan perwakilan rakyat, dewan perwakilan rakyat daerah provinsi, dewan perwakilan rakyat daerah kabupaten/kota) jils (journal of indonesian legal studies) volume 5(1) 2020 225 available online at http://journal.unnes.ac.id/sju/index.php/jils review article obstruction of justice in corruption cases: how does the indonesian anticorruption commission investigate the case? deni setya bagus yuherawan faculty of law, universitas trunojoyo madura, indonesia  deniyuherawan@gmail.com submitted: january 15, 2019 revised: april 11, 2020 accepted: april 30, 2020 abstract the purpose of this article is to analyze the investigation authority of the corruption eradication commission (kpk) on the counteraction case of corruption justice process. the reason for the writing is the existence of different interpretation of the authority of the kpk investigator to conduct an investigation on the counteraction case of justice process in article 21 of law no. 31 of 1999 concerning eradication of corruption law junto law no. 20 of 2001 concerning amendment to law number 31 of 1999 concerning eradication of the corruption (the law of corruption act). the analysis method of the problem formulation applies grammatical interpretation, systematic interpretation, and teleological interpretation. the legislation analyzed, besides the anti-corruption law, is the decree of the people’s consultative assembly of the republic of indonesia number xi / mpr / 1998 concerning state administrators that are clean and free of corruption, collusion, and nepotism; also law number 30 of 2002 concerning the corruption eradication commission junto law number 10 of 2015 concerning the establishment of government regulations in lieu of law number 1 of 2015 concerning amendments to law number 30 of 2002 concerning the corruption eradication commission. the conclusion of this article is that the kpk investigator is not authorized to conduct an investigation on the counteraction case of corruption justice process. keywords: investigation authority; kpk investigator; counteraction of corruption justice process; corruption case nationally accredited journal (sinta 2) jils (journal of indonesian legal studies) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue 1, may 2020 issn (print) 2548-1584 issn (online) 2548-1592 http://journal.unnes.ac.id/sju/index.php/jils 226 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ……………………………….……………………………. 225 table of contents ………………..………………...………….. 226 introduction ….…………………………………………………. 226 method ………………………………………………………………. 231 the authority of the kpk investigators to investigate the actions on corruption judicial process ………………………………………………………………. 231 i. reasons for the establishment (raison d'etre) of the corruption act …………..……………………… 231 ii. the nature of corruption in the anticorruption act …………………………………………….. 239 the authority of kpk investigators: how fars? … 246 conclusion ………………………………………....…………...… 253 references ………………………………………………………… 254 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. how to cite: yuherawan, d. s. b. (2020). obstruction of justice in corruption cases. jils (journal of indonesian legal studies) 5(1), 225-256. https://doi.org/10.15294/jils.v5i1.38575. introduction one of the legal practices that attracts the attention of criminal law experts is an investigation carried out by the corruption eradication commission investigator on the actions of those who obstruct or hinder the process of investigating (obstruction of justice) criminal acts of corruption. one of the phenomenal cases is the fredrich yunadi case. in the case file on behalf of fredrich yunadi who was suspected of violating article 21 of the corruption law, several acts were committed by former lawyer setya http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 227 available online at http://journal.unnes.ac.id/sju/index.php/jils novanto. fredrich as an advocate is seeking his client (setya novanto) to postpone the legal process carried out by the kpk (pending judicial proceedings). this was done in various ways, first: fredrich submitted a letter to the kpk investigation director. the contents say that if he as an advocate of setya novanto is conducting a material test to the constitutional court regarding the position of the former chair of the golkar party as a member of the dpr, so the summons must be authorized by the president; secondly, fredrich took the "fight" by reporting the leadership of the kpk, kpk investigators to the criminal investigation unit with a report allegedly violating article 414 jo article 421 of the criminal code; third fredrich engineered so that setya novanto was admitted to the medika permata hijau hospital. this was done in order to avoid investigative investigations by kpk investigators on desti astriani tagor's husband. however, in the construction of the public prosecutor's indictment, only the third act, namely fredrich's act of engineering so that setya novanto was hospitalized in permata hijau medika hospital in order to avoid investigations by the kpk investigator, who were charged as materially obstructing, hindered the investigation process.1 defendant fredrich yunadi is of the opinion that the corruption eradication commission (kpk) is not authorized to handle cases hindering investigations that were charged with him. this was said by fredrich when reading a plea or plea at the jakarta corruption court, friday (6/22/2018). "we think this case is not suitable to be brought to trial. the defendant should not be dragged into prison with charges of obstructing the investigation," fredrich said while reading pleading.2 1 it was also emphasized that according to the advocate law the meaning of article 16 regarding advocate immunity, had been materially tested in the constitutional court with the issuance of the constitutional court decision number 26 / puu-xi / 2013 and in its consideration, the judge firmly stated that the advocate in carrying out the profession's duties was not only in good faith, but also must not conflict with statutory regulations. this means that if an advocate is proven when defending the interests of the client using ways that violate the law or contrary to the laws and regulations, then of course the right to immunity does not apply or fall by itself. see rio riady, perbuatan obstruction of justice pada advokat dalam uu tipikor, jawa pos (january 16, 2019) https://www.jawapos.com/opini/16/01/2019/perbuatan-obstruction-of-justice-pada-advokatdalam-uu-tipikor/ 2 furthermore, in this case, fredrich was charged with violating article 21 of law number 31 of 1999 concerning eradication of corruption. the article concerns acts that obstruct the legal process carried out by law enforcement. according to fredrich, according to the statements of legal experts and indonesian linguists, article 21 listed in chapter iii of the anti-corruption law is another criminal act related to criminal acts of corruption. see abba gabrillin, fredrich: mutlak kpk tak berwenang tangani kasusnya, kompas (june 22, 2018), http://journal.unnes.ac.id/sju/index.php/jils https://www.jawapos.com/opini/16/01/2019/perbuatan-obstruction-of-justice-pada-advokat-dalam-uu-tipikor/ https://www.jawapos.com/opini/16/01/2019/perbuatan-obstruction-of-justice-pada-advokat-dalam-uu-tipikor/ 228 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils in fact, fredrich is not the only advocate charged with article 21 of law no. 31 of 1999 concerning eradication of corruption crimes jo law no. 20 of 2001 concerning amendment to law number 31 of 1999 concerning eradication of corruption crimes (anti-corruption act). in a report released by indonesia corruption watch (icw) as of january 13, 2018, there were 22 advocates who had been charged with obstructing corruption investigations. from the icw notes, there are three types of snares in the anti-corruption law targeting advocates. a total of 16 advocates are entangled in the bribery article, two advocates are suspected of providing false information, while four advocates are seen as obstructing the investigation of corruption cases. the following is a list of four advocates in icw's notes which hinder the investigation of corruption crimes:3 1. manatap ambarita is a legal attorney who is a suspect in a corruption case of the misuse of the remainder of the 2005 budget at the mentawai islands district kimpraswil office, afner ambarita. on april 3, 2008, afner and manatap headed to the west sumatra high prosecutors office with the intention of responding to an investigator's call. however, manatap barred his client from entering the high prosecutors office and ordered afner to wait in a car parked in the high prosecutors https://nasional.kompas.com/read/2018/06/22/14224431/fredrich-mutlak-kpk-tak-berwenangtangani-kasusnya?page=all 3 the indonesian legal aid and human rights association (pbhi) considers that the case involving former lawyer setya novanto, friedrich yunadi, is not a form of criminal advocacy. what does this mean, an advocate is given the right to immunity to not be convicted or prosecuted civilly if he carries out his duty in good faith because it is based on laws and regulations. if on the contrary, he has bad intentions or violates the rules and regulations he can be sentenced, and that is not criminalization. see anendya niervana, selain fredrich, 4 pengacara ini juga halangi penyidikan korupsi, liputan 6 (january 14, 2018), https://www.liputan6.com/news/read/3225824/selain-fredrich-4-pengacara-ini-juga-halangipenyidikan-korupsi. see also saldi isra, feri amsari, & hilaire tegnan, obstruction of justice in the effort to eradicate corruption in indonesia. 51 international journal of law, crime and justice. 72, 75-78 (2017); airen priska ramadhini, tinjauan yuridis terhadap perbuatan yang menghalangi proses peradilan (obstruction of justice) dalam tindak pidana korupsi di indonesia. diss. universitas internasional batam (2018); shinta agustina & saldi isra, obstruction of justice: tindak pidana menghalangi proses hukum dalam upaya pemberantasan korupsi 54-57 (2015); i. nyoman darma yoga, i. gusti agung ayu dike widhiyaastuti, & aa ngurah oka yudistira darmadi, kewenangan komisi pemberantasan korupsi menangani obstruction of justice dalam perkara korupsi. 7 kertha wicara: journal ilmu hukum. 1, 9-11 (2018); benjamin b. wagner, & leslie gielow jacobs, retooling law enforcement to investigate and prosecute entrenched corruption: key criminal procedure reforms for indonesia and other nations. 30 university of pennsylvania journal of international law. 183, 195-209 (2008). http://journal.unnes.ac.id/sju/index.php/jils https://nasional.kompas.com/read/2018/06/22/14224431/fredrich-mutlak-kpk-tak-berwenang-tangani-kasusnya?page=all https://nasional.kompas.com/read/2018/06/22/14224431/fredrich-mutlak-kpk-tak-berwenang-tangani-kasusnya?page=all https://www.liputan6.com/me/anendya.niervana https://www.liputan6.com/news/read/3225824/selain-fredrich-4-pengacara-ini-juga-halangi-penyidikan-korupsi https://www.liputan6.com/news/read/3225824/selain-fredrich-4-pengacara-ini-juga-halangi-penyidikan-korupsi https://www.researchgate.net/journal/1086-7872_university_of_pennsylvania_journal_of_international_law https://www.researchgate.net/journal/1086-7872_university_of_pennsylvania_journal_of_international_law jils (journal of indonesian legal studies) volume 5(1) 2020 229 available online at http://journal.unnes.ac.id/sju/index.php/jils office courtyard. manatap went to the high prosecutors investigator without his client and requested that the examination of afner be postponed for two weeks. the request was strongly rejected by investigators because manatap's reason for studying the file was considered unreasonable. a lot of debate took place between the two. he also lied when investigators tried to meet afner at the hotel where he was staying. manatap said that his client had returned home. even though afner's name is still recorded in the hotel guest book. when investigators targeted afner's house, afner's wife actually said her husband was away with manatap and had not returned. in 2008, the padang district court sentenced 1.5 years in prison and was reinforced by the west sumatra appeals court while the supreme court sentenced him to 3 years imprisonment against manatap. however, manatap ambarita was on the people's search list and was declared a fugitive by the mentawai district attorney in 2012 and was finally arrested in november 2016. 2. mohammad hasan bin khusi. the lawyer who is a malaysian citizen defended the wife of former democratic party treasurer m. nazaruddin, neneng sri wahyuni as a suspect in a suspected corruption case of the solar power plant (plts) development project in the ministry of manpower and transmigration. hasan was proven to hide the existence of his client who had run away and became a fugitive. for his actions hasan was sentenced to 7 years and fined 300 million rupiah in subsidair six months in captivity. the decision was handed down by the jakarta corruption court on march 5, 2013. 3. azmi bin muhammad yusuf. azmi, who is also a malaysian citizen, defended neneng sri wahyuni together with hasan in the same case. both are considered to prevent corruption by hiding neneng's whereabouts and even allegedly escorting neneng during his flight. azmi was also sentenced to the same law as hasan. in addition, azmi and hasan are also often referred to as colleagues in the business empire built by former democratic party treasurers and their wives. both hasan and azmi were listed as business partners of pt mahkota negara's director, marisi matondang, who was a witness in this alleged corruption case. pt mahkota negara is indeed known to be affiliated with nazaruddin's permai group. http://journal.unnes.ac.id/sju/index.php/jils 230 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils 4. fredrich yunadi is indeed often the center of attention in the news. the former lawyer for setnov often gives excessive statements about the conditions of his clients. even fredrich had become a trending topic due to the nickname 'bakpao' which he had pinned to the wound on setnov's forehead after the accident. on january 10, 2018 fredrich was named a suspect by the kpk because he was considered to be protecting setya novanto who was on the run. kpk claimed to have pocketed evidence that fredrich had ordered a floor of medika permata hijau hospital before the former golkar chief of staff had a single accident. fredrich and doctor bimanesh were also seen as collaborating in manipulating setnov's medical records. the legal process against fredrich is still ongoing.4 the actions of the four lawyers mentioned above are qualified to violate article 21 of law no. 31 of 1999 concerning eradication of corruption crimes jo law no. 20 of 2001 concerning amendment to law number 31 of 1999 concerning eradication of corruption crimes (anti-corruption act).5 article 21 of the anti-corruption law stipulates that "anyone who intentionally prevents, impedes, or thwarts directly or indirectly the investigation, prosecution, and examination at a court hearing of suspects and defendants or witnesses in a corruption case, is convicted with a minimum of 3 (three) years in prison and at most 12 (twelve) years and or a minimum fine of rp. 150,000,000.00 (one hundred fifty million rupiah) and a maximum of rp 600,000,000.00 (six hundred million rupiah). " based on the background description, there are different interpretations of the authorities who conduct an investigation of the act of impeding the corruption investigation process. thus, the formulation of the problem in this article is whether the kpk investigator has the authority to conduct an investigation of the act of obstruction of the investigation, prosecution, and examination process in a court of criminal act of corruption. 4 id. with all accompanying texts. 5 law no. 31 of 1999 concerning eradication of corruption crimes jo law no. 20 of 2001 concerning amendment to law number 31 of 1999 concerning eradication of corruption crimes [hereinafter as anti-corruption act (2001)] http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 231 available online at http://journal.unnes.ac.id/sju/index.php/jils method this study uses of grammatical interpretation, systematic interpretation, and teleological interpretation. what is interpreted are several legal rules in the decree of the people's consultative assembly of the republic of indonesia number xi/mpr/1998 concerning state administrators that are clean and corruption-free, collusion, and nepotism (tap mpr concerning kkn); law number 28 of 1999 concerning state administrators who are clean and free of corruption, collusion and nepotism; law number 31 of 1999 concerning eradication of corruption crimes in conjunction with law number 20 of 2001 concerning amendment to law number 31 of 1999 concerning eradication of corruption (anti-corruption act); as well as law number 30 of 2002 concerning the corruption eradication commission in conjunction with law number 10 of 2015 concerning the establishment of government regulations in lieu of law number 1 of 2015 concerning amendments to law number 30 of 2002 concerning the corruption eradication commission. the authority of the kpk investigators to investigate the actions on corruption judicial process i. reasons for the establishment (raison d'etre) of the corruption act raison d'etre law can be understood by analyzing the consideration (consideration) and general explanation of the relevant law. the essence of the considerations of the anti-corruption law are as follows: a. that the criminal act of corruption is very detrimental to the country's finances or the country's economy and impedes national development, so it must be eradicated in order to create a just and prosperous society based on pancasila and the 1945 constitution http://journal.unnes.ac.id/sju/index.php/jils 232 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils b. that due to the criminal acts of corruption that have occurred so far besides harming the country's finances or the country's economy, it also impedes the growth and sustainability of national development which demands high efficiency c. that law number 3 of 1971 concerning eradication of corruption crime is no longer in accordance with the development of legal needs in the community, because it needs to be replaced with a new corruption eradication act so that it is expected to be more effective in preventing and eradicating criminal acts of corruption d. that based on the considerations referred to in letters a, b, and c, it is necessary to establish a new law concerning the eradication of corruption. the consideration can be concluded that corruption is very detrimental to the country's finances, the country's economy, and impedes national development, so it must be eradicated in order to create a just and prosperous society. the negative impact of corruption is to inhibit the growth and continuity of national development which demands high efficiency, which is no longer possible to be eradicated using the old law (law number 3 of 1971 concerning eradication of corruption). for this reason, a new law is needed so that the prevention and eradication of corruption becomes more effective. while the general explanation of the corruption act emphasized that 1. to realize a just, prosperous and prosperous indonesian society, it is necessary to continuously improve efforts to prevent and eradicate corruption, because in reality corruption has caused huge state losses which in turn could have an impact on the emergence of crises in various fields . for this reason, efforts to prevent and eradicate corruption need to be increased and intensified while upholding human rights and the interests of society. 2. this law is intended to replace law number 3 of 1971 concerning eradication of corruption, which is expected to be able to meet and anticipate the development of the legal needs of the community in order to prevent and eradicate more effectively any form of corruption that is very detrimental to the country's finances or the economy the state in particular as well as the community in general. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 233 available online at http://journal.unnes.ac.id/sju/index.php/jils 3. in order to be able to reach various modus operandi of irregularities in state finances or the state's economy which is increasingly sophisticated and complicated, the criminal acts regulated in this law are formulated in such a way that includes acts of enriching oneself or another person or a corporation in an "unlawful manner" in formal and material terms. with this formulation, the understanding against the law in corruption can also include disgraceful acts which according to the sense of justice the community must be prosecuted and convicted. 4. this law also broadens the meaning of civil servants, who among others are people who receive salaries or wages from corporations that use capital or facilities from the state or society. what is meant by facilities are special treatment given in various forms, for example unreasonable loan interest rates, unreasonable prices, exclusive licensing, including relief of import duties or taxes that conflict with applicable laws and regulations. based on the considerations of the corruption law, acts of corruption that must be prevented and eradicated are acts that harm the country's finances, the country's economy, and hinder national development. actions that can hinder the realization of a fair, prosperous, and prosperous indonesian society. another ontological basis is acts of enriching oneself or another person or a corporation in an "unlawful" manner and the legal subject of the perpetrator. the meaning of civil servants is broadened to include those who receive salaries or wages from corporations that use capital or facilities from the state or society. the ontological basis is what must be understood the ratio legis of the formulation of the corruption qualification. another thing that needs to be understood, the establishment of the anti-corruption law is based on the mandate of the decree of the people's consultative assembly of the republic of indonesia number xi / mpr / 1998 concerning state administrators that are clean and corruption-free, collusion and nepotism (tap mpr concerning kkn), because the tap is made one of the legal basis for its formation, as contained in the "remembering" corruption act, namely: (1) article 5 paragraph (1) and article 20 paragraph (1) of the 1945 constitution; and (2) decree of the people's consultative assembly of the republic of indonesia number xi / mpr / 1998 concerning state administrators that are clean and corruptionhttp://journal.unnes.ac.id/sju/index.php/jils 234 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils free, collusion and nepotism. some main points in the tap mpr's consideration of kkn are: a. that in running the country there have been business practices that have benefited certain groups which foster corruption, collusion and nepotism, which involve state officials with businessmen so as to damage the joints of state administration in various aspects of national life; b. that in the framework of rehabilitating all aspects of national life with justice, it is necessary to hold trustworthy state administrators through the examination of the assets of state officials and former state officials and their families suspected of originating from corrupt, collusion and nepotism practices, and being able to free themselves from corrupt practices , collusion and nepotism. the main point for the tap mpr on kkn is the administration of the state and state administrators who are still carrying out practices of collusion, corruption and nepotism, in collaboration with employers. this practice damages the joints of state administration in various aspects of life. this practice is contrary to the demands of the people's conscience that requires state administrators to carry out their functions and duties seriously and responsibly to create efficacy and results for the implementation of development reforms. article 2 of the tap mpr concerning kkn determines: (1). the state administrators in the executive, legislative and judicial institutions must carry out their functions and duties properly and be accountable to the community, nation and state; and (2) to carry out its functions and duties, state administrators must be honest, fair, open, and trustworthy and be able to free themselves from the practices of corruption, collusion, and nepotism. article 2 of the tap mpr concerning kkn requires that state administrators carry out their duties properly and responsibly. besides that, also must not only be honest, fair, open, and trusted, but also avoid the practices of corruption, collusion, and nepotism. article 3 tap mpr concerning kkn, determine: 1) to avoid the practices of corruption, collusion and nepotism, someone who is believed to hold a position in the administration of the state must swear in accordance with his religion, must announce and be willing to inspect his wealth before and after taking office. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 235 available online at http://journal.unnes.ac.id/sju/index.php/jils 2) the examination of wealth as referred to in paragraph (1) above is carried out by an institution formed by the head of state whose membership consists of the government and the community. 3) efforts to eradicate corruption are carried out expressly by consistently implementing the criminal act of corruption. article 3 paragraph (3) of the tap mpr on kkn confirms that the eradication of corruption is explicitly and consistently aimed at state administrators, who often cooperate with businessmen. article 4 of the tap mpr regarding kkn, determines: "efforts to eradicate corruption, collusion and nepotism must be carried out firmly against anyone, both state officials, former state officials, families, and cronies as well as private parties / conglomerates including former president soeharto with due regard to the principle of presumption of innocence and human rights". the provisions of the article emphasize that the spirit of eradicating corruption is focused on state administrators and entrepreneurs (cronies).6 in article 5 the tap mpr concerning kkn is determined, that the provisions referred to in this provision are further regulated by law. based on that mandate, law no. 28 of 1999 was issued concerning the organization of a state that is clean and free of corruption, collusion and nepotism. 6 in the reform era, the spirit of reform was poured into tap mpr xi / 1998 concerning the implementation of a clean state free of corruption, collusion and nepotism (kkn). this was reinforced by tap mpr viii / 2001 concerning the policy direction of eradicating and preventing corruption, collusion and nepotism (kkn). in the era of president bj habibie, law no. 28 of 1999 concerning the organization of a state that is clean and free of corruption, collusion and nepotism together with the establishment of an anti-corruption institution for the officials' wealth supervisory commission (kpkpn), the business competition supervisory commission (kppu), and the ombudsman. but in general these institutions have not demonstrated the ability to eradicate corruption in indonesia, with the view that these institutions are still newly formed so that they are still struggling with administrative problems and institutional order. for comprehensive comparison, please also see muhammad aqil irham, neo-kkkn dan tantangan demokratisasi indonesia. 16 analisis: jurnal studi keislaman. 245, 255-257 (2016); edi maszudi, manajemen pencegahan kkn di indonesia. 6 prima ekonomika. 15, 20-25 (2015); mudiyati rahmatunnisa, menyoal kembali reformasi birokrasi di indonesia. 1 governance. 1, 7-9 (2010); fiona robertson-snape, corruption, collusion and nepotism in indonesia. 20 third world quarterly. 589, 593-597 (1999); stephen sherlock, combating corruption in indonesia? the ombudsman and the assets auditing commission. 38 bulletin of indonesian economic studies. 367, 370-376 (2002); heinzpeter znoj, deep corruption in indonesia. discourses, practices, histories." corruption and the secret of law. a legal anthropological perspective 117-125 (2007); sofie arjon schütte, the fight against corruption in indonesia. 26 südostasien aktuell: journal of current southeast asian affairs. 57, 60-63 (2007). http://journal.unnes.ac.id/sju/index.php/jils 236 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils the main points of consideration in the consideration of the establishment of the act (law no. 28 of 1999) are: a. that the administration of the state has a very decisive role in the administration of the state to achieve the ideals of the nation's struggle to realize a just and prosperous society as stated in the 1945 constitution b. that the practice of corruption, collusion and nepotism is not only carried out between state administrators but also between state administrators and other parties which can damage the joints of social, national and state life and endanger the existence of the state, so that a legal basis is needed to prevent it. as with the law no. 28 of 1999 regarding kkn, the law no. 28 of 1999 is fully aware that national, state and community issues are centered on the administration and administration of the state. the administration of the state is a vehicle for achieving the ideals of the nation's struggle to bring about a just and prosperous society. however, the destruction of the joints of social, national and state life occurs, due to the practices of corruption, collusion and nepotism. the practice is carried out by state administrators, between state administrators, and between state administrators and their cronies. raison d'etre the formation of the law no. 28 of 1999 can be observed in several main points in the general explanation, as follows: a. the criminal acts of corruption, collusion and nepotism are not only committed by state administrators, inter-state administrators, but also state administrators with other parties such as crony families, and business people, thus damaging the joints of community, nation and state life, as well as endanger the existence of the state. b. in the framework of saving and normalizing national life in accordance with the demands of reform, a common vision, perception and mission of all state organizers and the public is needed. the common vision, perception, and mission must be in line with the demands of people's conscience that want the realization of a state operator capable of carrying out their duties and functions seriously, full of responsibility, carried out effectively, efficiently, free from corruption, collusion, and nepotism http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 237 available online at http://journal.unnes.ac.id/sju/index.php/jils c. this law contains provisions relating directly or indirectly to law enforcement against criminal acts of corruption, collusion and nepotism specifically aimed at state administrators and other officials who have strategic functions in relation to the administration of the state in accordance with the provisions of the laws and regulations. valid invitation. d. this law is a part or subsystem of the legislation relating to law enforcement against acts of corruption, collusion, and nepotism. the main targets of this law are state administrators which include state officials in the state's highest institution, state officials in the state's highest institution, ministers, governors, judges, state officials and / or other officials who have a strategic function in relation to the administration of the state in accordance with the provisions of applicable laws and regulations. like the preamble, the general explanation of the law no. 28 of 1999 emphasized that the problem of corrupt, collusion and nepotism practices centered on state administrators who work together with fellow state administrators, or with other parties as their cronies. law enforcement against corruption, collusion and nepotism is specifically aimed at state administrators and other officials who have strategic functions in relation to the administration of the state. regarding who is referred to as the national operator, is regulated in article 2 of the law no. 28 of 1999, as follows: (1) state official at the state's highest institution; (2) state officials at state higher institutions; (3) minister; (4) governor; (5) judge; (6) other state officials in accordance with the provisions of the legislation in force; and (7) other officials who have strategic functions in relation to the administration of the state in accordance with the provisions of the legislation in force. these seven categories of state organizers are the main pumps for the tap mpr concerning kkn and the law no. 28 of 1999, as the party most responsible for corrupt, collusion and nepotism practices, both individually and in collaboration with fellow state administrators or other parties as cronies. in connection with the practices of corruption, collusion and nepotism, the national administration must (article 5 of the law no. 28 of 1999): (a) be prepared to examine his wealth before, during, and after taking http://journal.unnes.ac.id/sju/index.php/jils 238 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils office; (b) report and declare wealth before and after taking office; and (c) not committing acts of corruption, collusion and nepotism. with regard to the practices of corruption, collusion and nepotism, the legislators give authority to the president to form an examining commission, as regulated in articles 10 and 11 of the law no. 28 of 1999. according to article 10 of the law no. 28 of 1999, that in order to realize a state administration that is clean and free of corruption, collusion and nepotism, the president as the head of state forms an examining commission. while according to article 11 of the law no. 28 of 1999, the examining commission as referred to in article 10 is an independent institution that reports directly to the president as the head of state. the function of the examining commission is regulated in article 12 of the law no. 28 of 1999, namely: (1) the examining commission has the function to prevent the practice of corruption, collusion, and nepotism in the administration of the state. (2) in carrying out its functions as referred to in paragraph (1), the examining commission may cooperate with related institutions both domestically and abroad. with regard to the assets of a state operator, the examining commission has the authority as stipulated in article 17 of the law no. 28 of 1999, namely: (1) the examining commission has the duty and authority to examine the assets of the state administrators. (2) the duties and authorities of the examining commission as referred to in paragraph (1) are: a. monitor and clarify the assets of the state operator b. examine reports or complaints from the public, nongovernmental organizations, or government agencies regarding allegations of corruption, collusion, and nepotism from state administrators c. to conduct an investigation on its own initiative regarding the assets of a state operator based on instructions for corruption, collusion and nepotism against the relevant state operator d. seek and obtain evidence, present witnesses for the investigation of state officials suspected of corruption, collusion and nepotism or request documents from parties related to the investigation of the assets of the state operator concerned http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 239 available online at http://journal.unnes.ac.id/sju/index.php/jils e. if deemed necessary, in addition to requesting proof of ownership of part or all of the assets of a state operator allegedly obtained from corruption, collusion, or nepotism while serving as a state operator, also requests an official authorized to prove the allegation in accordance with the provisions of applicable laws. (3) an examination of the assets of a state operator as referred to in paragraph (1) shall be carried out before, during and after the person in charge. (4) provisions regarding the procedure for inspecting the assets of a state operator referred to in paragraphs (2) and (3) shall be regulated by a government regulation. the authority of the examining commission rests on 2 (two) main points, namely: (a) the wealth of the state operator; and (b) practices of corruption, collusion, and nepotism by state administrators. analyzing the main core of the tap mpr regarding kkn and law no. 28 of 1999, there are 4 (four) ontological bases in the two laws, namely: a. wealth; b. state administrators and their cronies; c. corrupt practices; and d. state losses and state economy. ii. the nature of corruption in the anti-corruption act corruption in the anti-corruption act is divided into 2 (two), namely: 1. criminal acts of corruption (regulated in chapter ii, article 2 through article 20); and 2. other crimes related to corruption (regulated in chapter iii, article 21 to article 24). the division of corruption into 2 (two) types certainly has a basis for rationalization. the problem is that the rationalization is not explicitly explained (expresis verbis) in the corruption act, both in consideration, general explanation, and general provisions. by using a systematic interpretation and teleological interpretation, it is associated with the tap mpr regarding kkn and the law no. 28 of 1999 on kkn, corruption referred to in articles 2 to 20 of the anti-corruption law is qualified based on 4 (four) concepts as the ontological basis, namely: (a) assets; (b) state http://journal.unnes.ac.id/sju/index.php/jils 240 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils financial losses or the economy of the country; (c) enriching oneself or others; (d) state administrators and their cronies. these four concepts are the ontological basis for the preparation of the corruption qualification. rationalization of the separation between corruption and other crimes related to corruption as a logical consequence of the corruption's focus which only relates to assets, financial losses of the state and the economy of the country, state administrators and their cronies, and corrupt practices. crimes that are directly related (core crimes) with 4 (four) concepts are corruption itself, while those outside of 4 (four) concepts are not core crimes (core crimes), which in the corruption law is categorized as acts other crimes related to corruption if article 2 through article 20 of the anti-corruption law we analyze, will confirm the existence of 4 (four) concepts above as their ontological basis. important concepts in article 2 of the anti-corruption law are: (a) enriching oneself or another person or a corporation; (b) detrimental to the country's finances or the country's economy; and (c) is against the law. the phrase "enriching oneself or another person or a corporation", relates to assets, as well as state administrators and their cronies. which is potentially detrimental to the country's finances and the country's economy is the state officials and its cronies. article 3 of the anti-corruption law contains important concepts, namely: (a) benefits oneself or another person or a corporation; (b) abuse the authority, opportunity or means available to him because of his position or position; (c) detrimental to the country's finances and the country's economy. only the state administrators can abuse their authority, opportunity or means because of their position or position. the phrase "benefit oneself or another person or a corporation" relates to the assets of a state operator and his cronies. this enrichment process has an impact on state losses and the country's economy. articles 5 and 6 of the anti-corruption law adopt articles 209 and 210 of the criminal code. articles 209 and 210 of the criminal code are included in the crimes against general authorities, namely bribery of state administrators, namely officials (article 209 of the criminal code) and judges (article 210). the context of this article is the configuration of subjects and deeds, like other parties who bribed officials or judges to influence officials to do or not do and affect judges' decisions. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 241 available online at http://journal.unnes.ac.id/sju/index.php/jils article 7 of the anti-corruption law adopts article 387 of the criminal code. article 387 of the criminal code is included in the chapter on cheating. the acts prohibited by this article area contractor or builder or seller of building materials, who when making a building or when handing over building materials, commits something fraudulent that can endanger the security of people or goods, or the safety of the state in a state of war. prohibited acts are also those in charge of overseeing the construction or surrender of these items, deliberately allowing fraudulent acts. norm of article 387 of the criminal code is a prohibition of cheating relating to the quality and quantity of buildings and building materials. in the context of the anti-corruption act, it means prohibiting the other party from cheating if the act results in state losses. articles 8, 9, 10, 11 and 12 of the anti-corruption act adopt article 415, 416, 417, 418, 419, 420, 423, 425, or 435 of the criminal code. article 415 to article 419 of the criminal code is included in the criminal title office. the perpetrators of the article 415, 416, 417, 418 and 419 of the criminal code are officials or other person assigned to carry out a public office continuously or temporarily. material deeds or modus operandi which carried out various kinds, namely: 1. intentionally embezzled money or securities saved because of his position, or allowed the money or securities to be taken or embezzled by someone else, or helped as a helper in carrying out the act (article 415 of the criminal code); 2. who deliberately fabricated or fabricated books specifically for administrative examination (article 416 of the criminal code); 3. who deliberately embezzled, destroyed, damaging or making goods that are not intended to be used to convince or prove in front of the competent authorities, deeds, letters or lists under their authority because of their position, or allow others to eliminate, destroy, destroy or make unable to use these items, or helped as a helper in carrying out the act (article 417 of the criminal code); 4. who accepts a gift or promise even though it is known or duly should be assumed, that the gift or promise is given because of the power or authority related to his position, or according to the mind of the person giving the gift or promise there is a relationship with his position (article 418 of the criminal code); http://journal.unnes.ac.id/sju/index.php/jils 242 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils 5. accept a gift or promise when it is known that the gift or promise is given to move it to do or not do something in its position that is contrary to its obligations and accept the gift knowing that the gift was given as a result. or because the recipient has done or not done something in his office that is contrary to his obligations (article 419 of the criminal code); 6. accept a gift or promise. even though it is known that the gift or promise is given to influence the decision of the case for which it is assigned, also to attend court hearings, receive gifts or promises, even though it is known that the gift or promise is given to influence the advice on cases that must be decided by the court (article 420 of the criminal code); 7. benefit oneself or others unlawfully, by abusing their power, forcing someone to give something, to pay or receive payment in pieces, or to do something for themselves (article 423 of the criminal code); 8. when carrying out duties, requesting, accepting, or deducting payments, as if owed to him, to other officials or to the public treasury, even though he knows that this is not the case; or when carrying out their duties, asking for or accepting people's work or delivering goods as if they were owed to them, even though they know that this is not the case; or when carrying out their duties, as if in accordance with the relevant regulations, they have used state land on which there are indonesian usage rights at a disadvantage to the right whereas it is known that it contradicts these regulations (article 425 of the criminal code); and 9. directly or indirectly deliberately participate in the chartering, surrender or leasing, which at the time of the act, for all or part of it, is assigned to administer or supervise it (article 435 of the criminal code) in article 8 to article 12 of the anti-corruption law, by adopting articles 415 through article 435 of the criminal code, qualifications of prohibited acts are acts that are inherent in the duties and responsibilities of the officials. these articles are also addressed to other parties (cronies) who work together with the officials concerned. article 13 of the anti-corruption act is an act of bribery of a civil servant, which prohibits anyone from giving gifts or promises to civil servants regarding authority or authority and the position or position of the official. this article is related to the position and authority of an official. article 15 of the anti-corruption law stipulates: "every person who commits an attempted, assisted, or unanimous conspiracy to commit a criminal act of http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 243 available online at http://journal.unnes.ac.id/sju/index.php/jils corruption is convicted of the same crime as referred to article 2, article 3, article 5 through article 14". this article is aimed at anyone who helps (as a crony) or engages in bad consensus (as well as cronies) on corruption conducted by officials or directed at officials. analysis of corruption in the aforementioned articles, confirms that corruption in the articles constitutes the core crimes of the corruption, because they are arranged based on their ontological character, namely assets, financial losses of the country or the economy of the country; enrich oneself or others; and state organizers and their cronies. in argumentum a contrario, actions which are not related to 4 (four) concepts cannot be qualified as corruption. other crimes related to corruption are regulated in article 21 through article 24 of the corruption law. in article 21 of the anticorruption law, prohibited acts are intentionally preventing, hindering, or failing directly or indirectly the investigation, prosecution, and examination at a court hearing. article 21 of the corruption act the criteria for acts to obstruct or hinder the process of a criminal act of corruption are:7 a. preventing the criminal justice process. the meaning of the word prevent in the indonesian dictionary includes: "uphold; hold back, not obey ...: obstruct; forbid. " the act of preventing is when the law enforcers are or are about to carry out a judicial process in a corruption case, the perpetrators of criminal acts have committed certain acts with the aim that the judicial process cannot be carried out and the efforts of the perpetrators of the criminal offenses have indeed been successful. b. obstruct judicial process of criminal acts of corruption. meaning obstructing: deterring ...; annoying, disturbing. obstructing what we can define complicates an action to be taken. what is intended by the perpetrators of these criminal offenses is when the law enforcers are or are about to conduct a judicial process in a corruption 7 markhy s. gareda, perbuatan menghalangi proses peradilan tindak pidana korupsi berdasarkan pasal 21 uu no. 31 tahun 1999 juncto uu no. 20 tahun 2001. 4 lex crimen. 134, 138-140 (2015). see also seraphim voliotis, abuse of ministerial authority, systemic perjury, and obstruction of justice: corruption in the shadows of organizational practice. 102 journal of business ethics. 537, 543-548 (2011); nurul hudi, implementation of article 21 of corruption eradication act on advocates performing their professional function. 3 hang tuah law journal. 32, 36-38 (2019). http://journal.unnes.ac.id/sju/index.php/jils 244 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils case, the perpetrators of the criminal offenses have committed certain acts with the aim that the ongoing judicial process is prevented from being carried out, and whether the actions can be achieved or no, it is not a condition. so here is enough to prove there are indications of efforts that lead to acts of thwarting or hindering the judicial process. c. thwarting the criminal justice process.8 the meaning of foiling including failing. what is intended by the perpetrators of these criminal offenses is when the law enforcers are or are about to conduct a judicial process in a corruption case, the perpetrators of the criminal acts have committed certain acts with the aim that the judicial process being carried out is not successful and the business of the criminal offenders is indeed successful. to frustrate is to make an action have no effect or make an action that has been done to be a failure.9 article 22 of the anti-corruption act prohibits acts "intentionally not giving information or giving incorrect information". article 23 of the anti-corruption law adopts articles 220, 231, 421, 422, 429 and 430 of the criminal code. prohibited acts are notifying or complaining of a criminal act, even knowing that it wasn't done (article 220 of the criminal code); intentionally withdrawing goods confiscated based on the provisions of the law or that are entrusted by the judge's order, or by knowing that the goods were pulled from there, hiding them; intentionally destroying, destroying or making confiscated goods useless; the storage of goods which intentionally committed or allowed one of the crimes to be committed, or as an assistant to help the act (article 231 of the criminal code); abusing power compels a person to do, not do or allow something (article 421 of the criminal code); an official who in a criminal case uses coercion, both to extort confessions, and to obtain information (422 of the criminal code); officials who exceed authority or without regard to the methods specified in general regulations, force entry into a house or room or enclosed yard used by another person, or if it is unlawfully there, does not immediately leave at the request of the rightful person or on behalf of that person; officials who at the time ransacked the house, beyond their control or without regard to the methods specified in the general regulations, inspected or confiscated letters, books 8 id. 9 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 245 available online at http://journal.unnes.ac.id/sju/index.php/jils or other papers (article 429 of the criminal code); as well as officials who exceed their authority, ask to show him or seize letters, postcards, goods or packages submitted to public transport agencies or cable news in the hands of telegraph officials for public purposes; an official who exceeds his authority, has a telephone official or other person assigned to a telephone job for public use, (article 430 of the criminal code).10 article 21, article 22, article 28 and article 29 contained in act number 31 of 1999 jo. law number 21 of 2001 is not only for a corruption criminal suspect but certain persons who deliberately prevent, provide false information, hinder or frustrate directly or indirectly the investigation, prosecution and examination of court proceedings against suspects or defendants or the defendants a witness in a corruption case, with a specific purpose and purpose. if it is known that the act of obstructing a judicial process of corruption, planned by the suspect in the act of corruption itself, then the action taken by the suspect may increase the sentence received by the suspect.11 in all of the above legal provisions, prohibited acts are in no way related to the issue of enriching oneself or others, as well as state financial and economic losses. it is true that these actions are categorized as other criminal acts, relating to corruption. in argumentum a contrario, these actions are not corruption. the act of obstructing the judicial process or (obstruction of justice) is an act of someone who obstructs the legal process, because the act of obstructing this is an act against the law that in fact they have clearly cut across and oppose law enforcement. "the act of obstructing the legal process is a criminal act because it clearly impedes law enforcement and damages the image of law enforcement agencies.12 while frustrating means someone's actions or efforts in order for something corruption that has been investigated, prosecuted, or tried in court is not carried out.13 10 id. see also anti-corruption act (2001) 11 muhammad fikri thamrin, analisis sanksi pidana terhadap perbuatan mencegah dan merintangi proses peradilan tindak pidana korupsi. diss. universitas lampung (2016) 12 supra note 7. 13 hari sasangka, komentar korupsi 34-37 (2007). in fact, it was also further emphasized that the impact of corruption could hamper the functioning of government as a supporter of state policies including hampering the role of the state in regulating allocations and preventing the state from making equal access and assets. see also perseta grabova, corruption impact on economic growth: an empirical analysis. 6 journal of economic development, management, it, finance, and marketing. 57, 60-63 (2014); http://journal.unnes.ac.id/sju/index.php/jils 246 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils the authority of kpk investigators: how fars? raison d'etre the formation of the kpk law is based on considerations: a. that in the framework of realizing a just, prosperous, and prosperous society based on pancasila and the 1945 constitution of the republic of indonesia, the eradication of corruption that has occurred so far has not been carried out optimally. therefore, the eradication of corruption must be increased professionally, intensively, and continuously because corruption has harmed the country's finances, the country's economy, and impeded national development; b. that government institutions that handle corruption cases have not functioned effectively and efficiently in eradicating criminal acts of corruption; c. that in accordance with the provisions of article 43 of law number 31 of 1999 concerning eradication of corruption crimes as amended by law number 20 of 2001 concerning amendments to law number 31 of 1999 concerning eradication of corruption, it is necessary to establish a commission on eradication of corruption independent corruption with the duty and authority to eradicate corruption. establishment of kpk with ontological basis as follows: (a) loss of state finances, state economy, and hinder national development; (b) factual corruption eradication institutions have not functioned effectively and efficiently; and (c) the need for independent institutions. the meeting point of the tap mpr on kkn, the law on kkn, and the anti-corruption act with the kpk law are losses of state finances, the country's economy, as well as hampering national development. the third common thread of the rule of law is to focus on eradicating acts that cause fang wang, & xunwei sun, absolute power leads to absolute corruption? impact of power on corruption depending on the concepts of power one holds. 46 european journal of social psychology. 77, 80-83 (2016); mitchell a. seligson, the measurement and impact of corruption victimization: survey evidence from latin america. 34 world development. 381, 393-398 (2006); peter graeff, & guido mehlkop, the impact of economic freedom on corruption: different patterns for rich and poor countries. 19 european journal of political economy. 605, 610-615 (2003); paul d. hutchcroft, the politics of privilege: assessing the impact of rents, corruption, and clientelism on third world development. 45 political studies. 639, 643-648 (1997). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 247 available online at http://journal.unnes.ac.id/sju/index.php/jils losses to the state finances, the country's economy, as well as hampering national development, which is carried out by the state administrators. the aforementioned red string is clearly manifested in article 6 letter c jo article 11 of the kpk law. according to article 6 letter c of the kpk law, that the kpk is tasked with investigating, investigating and prosecuting corruption. to carry out the tasks referred to in article 6 letter c, the kpk has the authority to conduct investigations, investigations and prosecutions of corrupt acts that: (a) involve law enforcement officials, state administrators, and other persons related to corruption committed by the authorities law enforcement or state administrators; (b) getting disturbing attention from the public; and / or (c) involving state losses of at least rp. 1,000,000,000.00 (one billion rupiah), according to article 11 of the kpk law. the two articles above emphasize that the authority of the investigation by the kpk investigator is focused only on corruption, as this criminal act (core crimes) whose perpetrators are law enforcement officers, state administrators, and their cronies. also related to state losses of at least one billion. corruption which becomes the limit of the scope of the authority of the kpk investigator is corruption with 3 (three) indicators, as regulated by article 11 of the corruption law. accordingly, the scope of the kpk investigator's authority is not related to corruption which has nothing to do with the state administrator and his cronies; enrich oneself or others; as well as state financial losses or the country's economy. returning to the qualifications of material acts prohibited by article 21 of the anti-corruption act are: intentionally preventing, hindering, or failing directly or indirectly the investigation, prosecution, and examination at a court hearing of suspects and defendants or witnesses in corruption cases. prohibited material acts only prevent, hinder, or frustrate directly or indirectly the investigation, prosecution and examination of court proceedings. thus, prohibited acts have absolutely nothing to do with enriching oneself, other people or corporations that harm the country's finances or the country's economy. the act of obstructing the judicial process or (obstruction of justice) is an act of someone who obstructs the legal process, because the act of obstructing this is an act against the law that in fact they have clearly cut across and oppose law enforcement. "the act of obstructing the legal process is a criminal act because it clearly impedes law enforcement and damages the http://journal.unnes.ac.id/sju/index.php/jils 248 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils image of law enforcement agencies. 14while frustrating means someone's actions or efforts in order for something corruption that has been investigated, prosecuted, or tried in court is not carried out.15 actually, the offense deliberately prevents, obstructs or frustrates directly or indirectly the investigation of the suspect or witnesses has been regulated in the criminal code as a general offense, namely article 216 of the criminal code which is copied from article 184 wvs (kuhp dutch version) which in paragraph two of the article "likewise anyone who deliberately prevents, obstructs or frustrates a job undertaken by a civil servant to carry out the legislation is threatened with imprisonment for a maximum of four months two weeks or a maximum fine of six hundred rupiah". the article in wvs in article 184 where the threat of criminal punishment is even lighter, namely a maximum of three-months imprisonment or fine, and second is an act charged with lighter punishment and not serious crime for standard on indonesian criminal code draft, where is the serious crime is charged with seven years imprisonment or more.16 obstruction of justice actually not a new term in the world of law, but this crime is not yet well known, some of the issues that make this term less popular are there are still reluctance of law enforcers to use this legal instrument in acting against the perpetrators of obstruction of justice acts and there are differences in perception among enforcers the law concerns the form of obstruction of justice in law number 31 of 1999 as amended to law number 21 of 2000 concerning eradication of corruption. obstruction of justice is the act of obstructing the judicial process is an act of someone who is obstructing the legal process, because the act of obstructing this is an act against the law that in fact they have clearly cut down and oppose law enforcement. the act of obstructing the legal process is a criminal act because it clearly impedes law enforcement and damages the image of law enforcement agencies.17 in carrying out its enforcement, it must use the law in accordance with the act and must not be equated with a criminal act of corruption because the act is not regulated in the anti-corruption act, therefore law enforcement is 14 supra note 7 15 id. 16 m. arif setiawan et.al, obstruction of justice 66-68 (2019). 17 oemar seno adji & insriyanto seno adji, peradilan bebas dan contempt of court 285-290 (2007). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 249 available online at http://journal.unnes.ac.id/sju/index.php/jils wise in taking action. the act obstructs the process of investigation, investigation and prosecution having nothing to do with corruption, it is only a part of corruption. article 21 anti-corruption act is often referred to as "obstruction of justice", or known as the core of the delicts (delictsbestanddelen) "intentionally prevent, hinder or frustrate directly, or indirectly the investigation, prosecution and examination in court of a suspect or defendant or the defendants or the witnesses in a corruption case ". article 21 of the anticorruption act law is classified as" other criminal acts relating to criminal acts of corruption "and has a minimum of 3 (three) years imprisonment and a maximum of 12 (twelve) years and or a minimum fine of rp. 150,000,000.00 (one hundred and fifty million rupiah) and a maximum of rp. 600,000,000.00 (six hundred million rupiah).18 article 21 of the anti-corruption act does not contain offenses regarding acts of corruption, because the prohibited act is an act of preventing, hindering or thwarting the investigation, prosecution and examination of a court of corruption case. the act of "obstruction of justice" must be done "intentionally", meaning that the act must contain the core offense "from the beginning known and desired as an act that is contrary to criminal law". in authentic interpretations or interpretations at the time the relevant legislation is prepared in this case the explanatory memory (memorie van toelicbting) explains intentionally (opzet) meaning "de (bewuste) richting van den wil op een bapaald mfsdrzjf" to commit certain crimes. according to the explanation "deliberately" (opzet) is the same as willens en wetens (desired and known). the act of "obstruction of justice" must contain a core part of the offense "prevent, hinder or frustrate directly, or indirectly" the meaning of the act is physical. this can be seen from the background regarding the existence of article 21 of the anti-corruption act originating from article 221 of the criminal code, the formulation of which explicitly refers to acts of a physical nature, this can be seen in the formulation in article 221 paragraph (1) of the criminal code which reads "hiding the person who commits a crime or charged with a crime" or giving him help to avoid investigations or detention". must contain the core offense "prevent, hinder or frustrate directly, or indirectly" the meaning of the act is physical in nature. this can be seen from the background regarding the existence of article 21 of the anti-corruption act originating from article 221 of the 18 id., at 150. http://journal.unnes.ac.id/sju/index.php/jils 250 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils criminal code, whose formulation explicitly refers to acts that are physical in nature, this can be seen in the formulation in article 221 paragraph (1) of the criminal code which reads "hiding people who commits a crime or is prosecuted for a crime "or gives him assistance to avoid investigation or detention". must contain the core offense "prevent, hinder or frustrate directly, or indirectly" the meaning of the act is physical in nature. this can be seen from the background regarding the existence of article 21 of the anti-corruption act originating from article 221 of the criminal code, whose formulation explicitly refers to acts that are physical in nature, this can be seen in the formulation in article 221 paragraph (1) of the criminal code which reads "hiding people who commits a crime or is prosecuted for a crime "or gives him assistance to avoid investigation or detention". 19 as an example of the case with the defendant lucas who was indicted by the public prosecutor in violation of article 21 of law number 31 of 1999 concerning eradication of corruption as amended by law number 20 of 2001 concerning amendment to law number 31 of 1999 concerning eradication of acts corruption in jo. article 55 paragraph 1 to 1 of the criminal code as a person who commits or participates in conducting, preventing, obstructing, or thwarting an investigation. prosecution, or examination in court in a corruption case.20 in connection with the object of the case relating to acts that violate article 21 of law 31 of 1999 concerning eradication of corruption, as amended by law no.20 of 2001 concerning amendment of law no.31 of 1999 concerning eradication of corruption, it will first be examined what is meant by article 21 of the anti-corruption act. article 21 anti-corruption act is often referred to as "obstruction of justice", or known as the core of the delicts (delictsbestanddelen) "intentionally prevent, hinder or frustrate directly, or indirectly the investigation, prosecution and examination in court of a suspect or defendant or the defendants or the witnesses in a corruption case ". article 21 of the anticorruption act law is classified as" other criminal acts relating to criminal acts of corruption "and has a minimum of 3 (three) years imprisonment and a maximum of 12 (twelve) years and or a minimum fine of rp. 150,000,000.00 19 id. 20 id., at 153. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 251 available online at http://journal.unnes.ac.id/sju/index.php/jils (one hundred and fifty million rupiah) and a maximum of rp. 600,000,000.00 (six hundred million rupiah). article 21 of the anti-corruption act does not contain offenses regarding acts of corruption, because the prohibited act is an act of preventing, hindering or thwarting the investigation, prosecution and examination of a court of corruption case. the act of "obstruction of justice" must be done "intentionally", meaning that the act must contain the core offense "from the beginning known and desired as an act that is contrary to criminal law". in authentic interpretations or interpretations at the time the relevant legislation is prepared in this case the explanatory memory (memorie van toelicbting) explains intentionally (opzet) meaning "de (bewuste) richting van den wil op een bapaald mfsdrzjf" to commit certain crimes). according to the explanation "deliberately" (opzet) is the same as willens en wetens (desired and known). the act of "obstruction of justice" must contain a core part of the offense "prevent, hinder or frustrate directly, or indirectly" the meaning of the act is physical. this can be seen from the background regarding the existence of article 21 of the anti-corruption act originating from article 221 of the criminal code, the formulation of which explicitly refers to acts of a physical nature, this can be seen in the formulation in article 221 paragraph (1) of the criminal code which reads "hiding the person who commits a crime or charged with a crime" or giving him help to avoid investigations or detention". must contain the core offense "prevent, hinder or frustrate directly, or indirectly" the meaning of the act is physical in nature. this can be seen from the background regarding the existence of article 21 of the anti-corruption act originating from article 221 of the criminal code, whose formulation explicitly refers to acts that are physical in nature, this can be seen in the formulation in article 221 paragraph (1) of the criminal code which reads "hiding people who commits a crime or is prosecuted for a crime "or gives him assistance to avoid investigation or detention". must contain the core offense "prevent, hinder or frustrate directly, or indirectly" the meaning of the act is physical in nature. this can be seen from the background regarding the existence of article 21 of the anti-corruption act originating from article 221 of the criminal code, whose formulation explicitly refers to acts that are physical in nature, this can be seen in the formulation in article 221 paragraph (1) of the criminal http://journal.unnes.ac.id/sju/index.php/jils 252 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils code which reads "hiding people who commits a crime or is prosecuted for a crime "or gives him assistance to avoid investigation or detention".21 the case is an example that can be used to understand obstruction of justice and is one type of contempt of court criminal act. obstruction of justice is an act intended or that has the effect of distorting, disrupting the functions that should be in a judicial process. obstruction of justice is a disruption to the judicial process in which there is an attempt to reduce the goodness (fairness) or efficiency of the judicial process or to the judiciary related to the term obstruction of justice is a legal terminology derived from anglo saxon literature, which in the doctrine of criminal law in indonesia is often translated as "criminal acts obstructing the legal process."22 put simply, charles boys said that "obstruction of justice is frustration of governmental purposes by violations, corruption, destruction of evidence, or deceit." with this understanding, obstruction of justice is actually not only related to a legal process (criminal), but also related to a government activity in an effort to realize the objectives of the government.23 the act of "obstruction of justice" must be carried out with "investigation, prosecution and examination in a court of law against a suspect or defendant or witnesses in a corruption case". the investigation began with the issuance of an investigation warrant, as well as the prosecution and inspection activities at the court hearing of suspects or defendants or witnesses in corruption cases. the formulation of a criminal offense outlined in article 21 of the anti-corruption act, therefore, must 21 id., at 150. for further comparison and comprehensive picture, please also see yemane desta, manifestations and causes of civil service corruption in the of developing countries. 9 journal of public administration and governance. 23, 26-29 (2019); chris russell, friendly governance: assessing sociopolitical factors in allegations of corruption. 21 public integrity. 195, 200-205 (2019); jay s. albanese, kristine artello, & linh thi nguyen, distinguishing corruption in law and practice: empirically separating conviction charges from underlying behaviors. 21 public integrity. 22, 25-27 (2019); graham brooks, criminal justice and corruption: state power, privatization and legitimacy 217-226 (2019); marta żerkowska-balas, & anna sroka, the influence of corruption scandals on government accountability. 24 political preferences. 45, 48-59 (2019); issa luna-pla, & josé r. nicolás-carlock, corruption and complexity: a scientific framework for the analysis of corruption networks. 5 applied network science. 1, 10-11 (2020); muh sutri mansyah, penafsiran keterangan palsu dalam persidangan tindak pidana korupsi dengan kaitannya kasus obstruction of justice. 16 justicia islamica jurnal kajian hukum dan sosial. 61, 65-68 (2019); muh sutri mansyah, menghilangkan alat bukti oleh penyidik tindak pidana korupsi sebagai upaya obstruction of justice. 18 ekspose: jurnal penelitian hukum dan pendidikan. 877, 878-881 (2020). 22 shinta agustina & saldri isra, obstruction of justice, supra note 3. 23 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 253 available online at http://journal.unnes.ac.id/sju/index.php/jils contain the core offense as described above, with consequences if the core offense of article 21 of the anti-corruption act article is not fulfilled, then the act is not a criminal offense under article 21 of the anti-corruption act. conclusion the authority of the investigation by the kpk investigators is focused only on corruption, as a core crime whose perpetrators are law enforcement officers, state administrators, and their cronies. also related to corruption which becomes the scope of the scope of the authority of the kpk investigator is corruption with 3 (three) indicators, as regulated by article 6 letter c jo article 11 of the anti-corruption law. there is no doubt that the acts prohibited by article 21 of the anticorruption law are not corruption as core crimes, because they are not in the context of enriching oneself, another person or a corporation; and has nothing to do with state financial losses and the country's economy. and it is appropriate if categorized as another crime. therefore, kpk investigators do not have the authority to investigate the actions of investigating, prosecuting, and examining in court cases in corruption cases. normatively, actions to obstruct the judicial process are regulated in many regulations, both in the criminal code and special criminal law. corruption practices occur in almost every layer of the bureaucracy, both legislative, executive and judicial, and have also spread to the business world. like a disease, corruption is a chronic disease, so it is very difficult to treat it. in essence there are limitations on the authority in conducting investigations, investigations and prosecution of criminal acts. based on the understanding of criminal acts of corruption in the anticorruption act. the kpk is only authorized to conduct investigations, investigations and prosecutions of corruption offenses, and not other crimes related to corruption. investigators and public prosecutors are not authorized to carry out the investigation, investigation and prosecution of article 21 of the anticorruption act against the defendant. article 21 of the anti-corruption act is clearly and clearly qualified as a criminal offense related to criminal acts of corruption. even though article 6 letter c of the kpk law limits the authority http://journal.unnes.ac.id/sju/index.php/jils 254 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils of investigators and public prosecutors to the extent of an investigation, an investigation. and prosecution of corruption and the anti-corruption act. this is reinforced in article 11 of the kpk law and also emphasized in paragraphs four to paragraph seven of the explanation of the kpk law. the authority limitation is needed so that there is no monopoly on the task and authority of investigation, investigation and prosecution and there is no overlapping authority over the eradication of corruption between kpk and other law enforcement agencies. references adji, o.s., & adji, i.s. 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(january, 2018). selain fredrich, 4 pengacara ini juga halangi penyidikan korupsi, liputan 6, 14 january, https://www.liputan6.com/news/read/3225824/selain-fredrich-4pengacara-ini-juga-halangi-penyidikan-korupsi ramadhini, a. p. (2018). tinjauan yuridis terhadap perbuatan yang menghalangi proses peradilan (obstruction of justice) dalam tindak pidana korupsi di indonesia. dissertation. batam: universitas internasional batam. rahmatunnisa, m. (2010). menyoal kembali reformasi birokrasi di indonesia. governance 1(1), 1-12. riady, r. (january, 2019). perbuatan obstruction of justice pada advokat dalam uu tipikor, jawa pos, 19 january. https://www.jawapos.com/opini/16/01/2019/perbuatan-obstructionof-justice-pada-advokat-dalam-uu-tipikor/ robertson-snape, f. (1999). corruption, collusion and nepotism in indonesia. third world quarterly 20(3), 589-602. russell, c. (2019). friendly governance: assessing sociopolitical factors in allegations of corruption. public integrity 21(2), 195-213. http://journal.unnes.ac.id/sju/index.php/jils https://www.liputan6.com/me/anendya.niervana https://www.liputan6.com/news/read/3225824/selain-fredrich-4-pengacara-ini-juga-halangi-penyidikan-korupsi https://www.liputan6.com/news/read/3225824/selain-fredrich-4-pengacara-ini-juga-halangi-penyidikan-korupsi https://www.jawapos.com/opini/16/01/2019/perbuatan-obstruction-of-justice-pada-advokat-dalam-uu-tipikor/ https://www.jawapos.com/opini/16/01/2019/perbuatan-obstruction-of-justice-pada-advokat-dalam-uu-tipikor/ 256 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils sasangka, h. (2007). komentar korupsi. bandung: mandar maju. seligson, m. a. (2006). the measurement and impact of corruption victimization: survey evidence from latin america. world development 34(2), 381-404. setiawan, m.a., et al. (2019). obstruction of justice. yogyakarta: genta publishing. schütte, s. a. (2007). the fight against corruption in indonesia. südostasien aktuell: journal of current southeast asian affairs 26(4), 57-66. sherlock, s. (2002). combating corruption in indonesia? the ombudsman and the assets auditing commission. bulletin of indonesian economic studies 38(3), 367-383. thamrin, m. f. (2016). analisis sanksi pidana terhadap perbuatan mencegah dan merintangi proses peradilan tindak pidana korupsi. dissertation. lampung: universitas lampung. voliotis, s. (2011). abuse of ministerial authority, systemic perjury, and obstruction of justice: corruption in the shadows of organizational practice. journal of business ethics 102(4), 537-562. wagner, b. b., & jacobs, l. g. (2008). retooling law enforcement to investigate and prosecute entrenched corruption: key criminal procedure reforms for indonesia and other nations. university of pennsylvania journal of international law 30(1), 183-265. wang, f., & sun, x. (2016). absolute power leads to absolute corruption? impact of power on corruption depending on the concepts of power one holds. european journal of social psychology 46(1), 77-89. yoga, i. n. d., widhiyaastuti, i. g. a. a. d., & darmadi, a. n. o. y. (2018). kewenangan komisi pemberantasan korupsi menangani obstruction of justice dalam perkara korupsi. kertha wicara: journal ilmu hukum 7(4), 1-14. żerkowska-balas, m., & sroka, a. (2019). the influence of corruption scandals on government accountability. political preferences 24(1), 4556. znoj, h. (2007). deep corruption in indonesia. discourses, practices, histories. in corruption and the secret of law. a legal anthropological perspective. farnham: ashgate. about author deni setya bagus yuherawan is a lecturer at faculty of law universitas trunojoyo madura (utm), indonesia. his research interests are concerning criminal law and philosophy of law. beside working as a lecturer and researcher in criminal law studies, he has also served as dean of the faculty of law (2014-2015) and vice rector i (2015-2018). currently, the author is active in various scientific meetings and conferences both national and international. http://journal.unnes.ac.id/sju/index.php/jils https://www.researchgate.net/journal/1086-7872_university_of_pennsylvania_journal_of_international_law https://www.researchgate.net/journal/1086-7872_university_of_pennsylvania_journal_of_international_law jils (journal of indonesian legal studies) volume 5(2) 2020 479 available online at http://journal.unnes.ac.id/sju/index.php/jils review article legal principle between concept and content oleg yurievich latyshev1, andrei valerievich skorobogatov2 , alexander valerievich krasnov3 1 international mariinskaya academy, russia 2 kazan innovation university n.a. v.g. timiryasov, russia 3 russian state university of justice, russia  papa888@list.ru submitted: february 11, 2020 revised: april 25, 2020 accepted: august 22, 2020 abstract the article is devoted to the study of the legal nature of legal principles. the purpose of the article is a comprehensive study of the legal and social aspects of the essence and content of the legal principle as a philosophical and legal category. the methodological basis of the article is an integrative approach to the study of legal reality, which allowed us to combine general scientific and private scientific methods developed in various scientific paradigms and study the principles of law not only ontologically, but also epistemologically and axiologically, taking into account the phenomenological and communicative aspects of their content, development and functioning. this paper emphasized that the study of legal principles not only in the legal, but also in the general social context allows us to conclude that this category is fundamental in the construction of legal reality cognitively, functionally, and normatively. the legal principle is the conventional result of legal communication. as a fundamental category of legal reality, the principle determines the nature of its analysis, interpretation and evaluation. the nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue 2, november 2020 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils http://orcid.org/0000-0001-9139-5367 http://orcid.org/0000-0002-9934-4975 480 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils scientific novelty of the article is determined by the specifics of the research methodology and the findings obtained, which allow us to determine the fundamental role of the legal principle at all levels of legal reality. the practical significance of the article lies in the ability to use the findings in the study of other aspects of the development and functioning of legal reality, as well as in generating forecasts for the development of the national legal system. keywords: integrative methodology; legal principle; legal reality; legal regulation; philosophical and legal category http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 481 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………….….. 479 table of contents ……………………………..…...……….….. 481 introduction ………………………………….……………..……. 481 legal principle: how does it works? …………………… 483 i. the nature of legal principle ………………………….….…….…. 483 ii. legal principle: a philosophical and legal category ………….…. 487 a. social conditionality of the legal principle …………………… 487 b. the normativeness of the legal principle ……………………... 488 c. non-personalization of the legal principle ……………………. 489 d. orientation to duty ……………………………………………… 490 e. the objectivity of the legal principle of legal reality ……..… 490 f. the rule of law …………………………………………………. 492 g. stability of the legal principle ………………………………….. 493 h. the system-forming nature of the legal principle …………… 494 i. the abstractness of the legal principle ………………………... 494 conclusion ………………………………………………..……..…. 497 references ………………………………………………………….. 498 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. how to cite: latyshev, o. y., skorobogatov, a. v., & krasnov, a. (2020). legal principle between concept and content. jils (journal of indonesian legal studies), 5(2), 479-500. https://doi.org/10.15294/jils.v5i2.37387 introduction the process of cognition of the essence and content of legal reality is complicated by the undeveloped conceptual and categorical apparatus. legal science is faced with an epistemological task: to determine the meaning of legal phenomena and to give them a definition. it is important that this definition adequately corresponds to legal reality and is understood http://journal.unnes.ac.id/sju/index.php/jils 482 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils equally in the doctrine and at the level of normative consolidation. this will ensure the correlation of legal doctrine and legal system and the harmonization of legal reality. formulated concepts and categories should correspond to the level of development of the humanities, be the result of scientific and philosophical reflection and reflect the conventional position of most scientists.1 one of these categories is the legal principle. the study of the legal principle is important for the analysis of the nature, content and functioning of most legal phenomena. the problem of legal principles has a strong tradition of scientific study. both representatives of legal positivism2 and supporters of the natural law theory3 addressed her. positivists paid the main attention to the normativity of the principles of law, their consolidation in the legislation. proponents of natural law theory, on the contrary, drew attention to the doctrinal component of the principles. they note their leading role in law enforcement and enforcement. only in recent years have representatives of integrative legal thinking addressed the problem of legal principles, emphasizing their dual nature and combination of normative and cognitive components.4 this determined the purpose of the article—a study of the legal nature of the category “legal principle”. furthermore, the methodological basis of the article is an integrative approach to the study of legal reality.5 integration of the approaches and methods of classical and post-classical philosophy of law allows us to overcome the dogmatism of legal science and consider not only the ontological aspect of the legal principle, the features of its being in legal reality, but also the epistemological and axiological aspects. the possibilities of the postclassical approach create acceptable conditions in order to reveal 1 rudolf wiethölter, proceduralization of the category of law+. 12 german law journal465, 465-473 (2011). 2 herbert lionel adolphus hart & genaro r. carrió. el concepto de derecho (buenos aires, abeledo-perrot, 1961); herbert lionel adolphus hart, the concept of law, (oxford university press, n.-y, 1961); joseph raz, legal principles and the limits of law, 81 the yale law journal, 823-854 (1972). 3 ronald dworkin, law’s empire (harvard university press, cambridge, 1988). 4 cankorel turgut, cognitive classification of legal principles: a new approach to international legal training, 5 ankara law review 153, 153-200 (2008); daci jordan, legal principles, legal values and legal norms: are they the same or different? 1 academicus international scientific journal 109, 109-115 (2010). 5 krawietz werner, juridische kommunikation im modernen rechtssystem in rechtstheoretischer perspektive. in: brugger w., neumann u., kirste s. (eds.) rechtsphilosophie im 21. jahrhundert. (suhrkamp, frankfurt-am-main, 2008). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 483 available online at http://journal.unnes.ac.id/sju/index.php/jils the meaning of the category “legal principle” and its place in the legal discourse, to determine the value potential of the category in the legal life of a person, society and the state. legal principle: how does it works? i. the nature of legal principle modern philosophy defines the principle as the starting point of a theory or worldview. these provisions determine the system of knowledge, values and behavior of a person, social group and society. consideration of legal reality as part of social reality makes it possible to extrapolate the general concept of a principle to the meaning of the category “legal principle” and reveal its dual nature. the duality of legal principles is determined by the features of their origin and their role in legal reality. legal principles are simultaneously the conventional result of the legal interaction of members of a particular community (social group or society)6 and social construction by the political elite.7 in the second case, the principles reflect the legislator's ideal ideas about human actions that are most consistent with the generalized expression of social interests.8 legal principles are an essential element of any legal system. the correlation of principles with legal norms and law enforcement determines the degree of effectiveness of legal regulation and the legitimacy of a state’s legal policy.9 the leading role of legal principles in legal regulation is recognized by most scientists, although the interpretation of the meaning of this category varies significantly. the whole variety of interpretations of legal principles 6 volkmar gessner, global legal interaction and legal cultures, 7 ratio juris: an international journal of jurisprudence and philosophy of law132, 132-145 (1994). 7 peter l. berger & thomas luckmann, the social construction of reality: a treatise in the sociology of knowledge (penguin books, n.y, 1991). 8 karl nickerson llewellyn, the case law system in america, (the university of chicago press, chicago, 1989). 9 jürgen habermas, die einbeziehung des anderen. studien zur politischen theorie, (suhrkamp verlag, frankfurt am main, 1996). http://journal.unnes.ac.id/sju/index.php/jils 484 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils can be reduced to three positions: (1) legal principles are basic ideas; (2) legal principles are fundamental values enshrined in the rule of law that determine the specifics of legal regulation; (3) legal principles are a complex category that combines basic ideas and normatively expressed values that equally affect the content of legal regulation.10 the authors of the article believe that the third point of view is the most adequate to the content and significance of legal principles in legal regulation. it not only corresponds to the integrative tendency of the development of modern jurisprudence, but also reflects the objectivesubjective nature of legal principles and reveals the dichotomism of principles in legal life. on the one hand, legal principles are the result of social construction. on the other hand, it is the principles that determine the value attitude of a person, a social group and society to legal reality. they can be correlated with the spirit of the law, about which montesquieu,11 and with the folk spirit of the german historical school of law.12 at the same time, significantly different positions are proposed regarding the understanding of the legal nature of legal principles. in particular, based on the ideas of an integrative theory of law,13 the legal principle can be defined as a fundamental form of law that characterizes the cognitive aspect of legal reality, capable of ensuring homeostasis of the legal system and the focus of law formation and law enforcement. the principle is simultaneously interpreted both as a form of law and as a regulator of social relations along with the rule of law. legal principles do not just create law and influence the content of norms. although this kind of influence exists, it is imperative. legal principles are used as a direct regulator of public relations in cases where the rule of law (or the rule of law governing similar public relations) is absent (with gaps). either there are contradictions in the content of several rules of law or in the order of their application (legal conflicts), or there is some legal uncertainty in understanding the content of certain rules of law that must 10 rüthers b & fischer ch, rechtstheorie: begriff, geltung und anwendung des rechts. 5, 195-196 (auflage, verlag c. h. beck, münchen, 2010). 11 charles de montesquieu, montesquieu: the spirit of the laws, (cambridge university press,cambridge, 1989). 12 puchta, george friedrich, 1965. das gewohnheitsrecht. 2 vols. reprint, wissenschaftliche buchgesellschaft: darmstadt. (in germ.). 13 valentin v. ershov, the essence of the principles of law, 11 journal of siberian federal university. humanities & social sciences 2089, 2089-2103 (2018). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 485 available online at http://journal.unnes.ac.id/sju/index.php/jils be implemented. in this sense, the legal principle acts as a form of law: although the principle of internal content is an idea, this idea concerns patterns of behavior, albeit fairly general and abstract, but nonetheless defining the legal behavior of the subject. based on the fact that the legal principle may or may not have direct regulatory fixation, it is an external expression of law and cannot be identified with the rule of law. the legal principle thereby occupies a special place among the forms of law, not always having an unambiguous documentary embodiment, sometimes existing in the legal consciousness or “dissolving” in the content of numerous legal norms. however, the sign of a possible lack of normative consolidation is not completely specific, since a legal custom as a form of law may also not have a fixed written fixation. we emphasize that in the framework of this study, we use as a priority the category of legal principle, and not the principle of law. the designated categories do not seem to us identical in content. the legal principle is the most general category, which includes, in particular, the principles of law. in this case, we are based, as mentioned above, on an integrative understanding of law, within the framework of which the existence of law in various manifestations is allowed. in particular, this right is positive (mainly legislation, and in the anglo-saxon tradition—a system of judicial precedents), natural law as a system of inborn and inalienable human rights, as well as informal (unwritten, or social law) law. the category of legal principle is intended to cover principles at all levels— positive, natural, informal law. the category of the principle of law reveals the principles of positive law (they can also be designated as legal principles). at the same time, the principles of natural as well as informal (unwritten) law also exist in legal reality. considering the legal principles in the dialectical interaction of the ontological and axiological aspects, the synthesis of objective and subjective forms of existence and evaluation,14 \they can be divided into normative and doctrinal. normative legal principles are socially legitimate initial ideas, enshrined in legal norms and implemented in legal policy. being included in formal sources of law, such principles determine the main directions of 14 r. george wright, objective and subjective tests in the law, 16 the unh law review121, 121-146 (2017). http://journal.unnes.ac.id/sju/index.php/jils 486 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils embodiment of the state will in the construction of legal and social reality, which have received social recognition and support. to a large extent, the explicit presence of a legal principle in the law ensures its legitimization and helps to increase the effectiveness of legal regulation and harmonization of legal reality.15 doctrinal legal principles reflect a conventional social position, are a cognitive image of the value component of a national legal tradition and are not directly expressed in formal sources of law. their identification and formulation is the result of the deconstruction of legislation and legal practice, and is doctrinal in nature. the degree of correlation of legal texts with the legal tradition shows the features of the legitimization of legislation in a particular country.16 thus, the classification of legal principles given here is based on one of the essential and basic principles in the context of this presentation of the thesis that legal principles do not always have external regulatory reinforcement, being in this case included in the legal doctrine. as an example, we can cite such general legal principles as the principle of the unity of subjective rights and legal duties, as well as the principle of combining conviction and coercion in law. it is obvious that the above legal principles initially exist as a component of scientific doctrine and are not inferred from the content of existing legal norms. if we say the opposite, then we can encounter a mixture of causes and effects, primary and secondary: due to the presence of such principles in the rules of law, the corresponding content appears, and not vice versa, when we begin to judge the existence of such legal principles by the rules of law. 15 alexander valerievich krasnov, legitimnost' prava: aksiologicheskij aspekt [legitimacy of the law: axiological aspect], 1 the review of economy, the law and sociology 87, 87-90 (2019). 16 andrei valerievich skorobogatov, & ali abbood malik, legitimaciya zakona v yuridicheskom diskurse [legitimation of law in juridical discourse], 13 actual problems of economics and law 1370, 1370–1378 (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 487 available online at http://journal.unnes.ac.id/sju/index.php/jils ii. legal principle: a philosophical and legal category the legal principle as a philosophical and legal category is characterized by a number of features. a. social conditionality of the legal principle the social conditionality of the legal principle, its focus on the protection of socially recognized values. despite the constructed nature of the legal principle, its content is determined by the content and features of the functioning of social reality.17 the legal principle is formed in the process of legal communication of horizontal orientation and represents the conventional result of social interaction. the legal principle acts as a fundamental idea, which allows the formation of conflict-free legal communication in a particular community (social group, society). it is the assimilation of principles as a guiding idea and a value guideline of behavior in the process of secondary legal socialization that provides legal identification of a person in a community. being a reflection of social interaction in the legal sphere, legal principles act as constants of legal being that are universal in nature, but capable of transformation in the course of social evolution. this allows you to correlate the legal principle with natural law.18 however, the sociality of the legal principle is often associated with the position of the reference group (for example, the political elite), which is able to extend its value orientations to other members of society in the process of vertical legal communication. in this situation, legal principles are more of a constructive nature. the degree of their development by society depends on the effectiveness of the mechanism of legal regulation and the specifics of legitimization of legal policy. the constructibility of legal principles by a reference group based on legal borrowing is especially characteristic of transitive societies. the perception of these principles as 17 david miller, principles of social justice, (harvard university press, cambridge, 1999). 18 philip selznick, sociology and natural law, 61 natural law forum, 84-108 (1961). http://journal.unnes.ac.id/sju/index.php/jils 488 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils value guidelines for legal behavior by other members of society is not only evidence of their legal identification, but also the basis for effective vertical mobility and the possibility of joining reference groups. as a fairly typical example of the construction of legal principles, the reform of russian legislation in the 1990s can be identified, and this was most clearly manifested in the field of civil law, where not only the borrowing of foreign legislation took place, but even their direct transfer, which, respectively, suggested a significant change in principles. the latter was also due to the need for a fundamental change in the legal regulation of economic relations on the basis of the country's development paradigm in line with the market economy, chosen by the ruling elite as a guide. however, until now, in russian society (or in a certain part of it, and very significant in quantitative composition), some legal principles cause some rejection due to their inconsistency with the understanding of the principles of justice and collectivism that prevailed in the soviet era (and, in the soviet understanding, party spirit)—as an example, the principle of noninterference in private affairs (which, according to many, prevents the fair distribution of the results of the efforts made in the form of income). in addition, not all segments of the population are encouraged by the choice of the so-called flat taxation scale, which is fundamentally fixed in tax legislation. b. the normativeness of the legal principle the normativeness of the legal principle means the possibility of its normative consolidation. being enshrined in a legal norm, the principle becomes not only a form of law, but also a source of direct action, which is imperative.19 it is a sign of normativity that shows that the legal principle is not only a cognitive, but also a functional construct. it is not only oriented towards mastering the legal consciousness but is also called upon to act as a value guide for legal behavior.20 the normativeness of legal principles is not identical to their mandatory documentary consolidation in the written text: 19 joseph raz, the rule of law and its virtue. in: bellamy, r. (ed.). the rule of law and the separation of powers 77-78, (routledge, london, 2005) 20 gerald j. postema, law’s melody: time and the normativity of law. a realist approach to the objectivity of norms and law, 7 associations. journal for legal and social theory 227, 227-239 (2003). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 489 available online at http://journal.unnes.ac.id/sju/index.php/jils as we noted above, some principles of law and the principles of informal law may not be fixed in norms but contained in the doctrine. however, despite the absence of legal documents, in such cases, the principle also fixes a certain general and abstract model of behavior, which allows us to talk about the universality of the normative sign in relation to legal principles. c. non-personalization of the legal principle non-personalization of the legal principle according to the subject composition, spatially and temporally. acting as a fundamental idea, the principle is oriented to any subject of law within the framework of a certain historically and socioculturally determined legal reality. the legal principle determines the perception of legal reality and the legal behavior of subjects within a certain sociocultural chronotope, although it can also extend to other sections of legal reality, acting as an archetype.21 the shift in the application of principles in legal reality, which can take place during largescale legal reforms, occurs at a certain chronological period of time, within which legal reality has not yet adapted to new areas in legal regulation: new, possibly borrowed, legal principles have been proclaimed, have found their reflected in the norms of the relevant bills, however, at the level of the implementation of law and the level of legal behavior, a conflict occurs with the usual, prevailing before governmental legal principles. a similar situation took place in the legal reality of russia both in 1918-1922, in the era of the formation of soviet law and the gradual abandonment of the principles of the law of tsarist russia, and in the late 1980s and early 1990s, which led to disharmony in legal reality and it required significant enough efforts, legal, structural and organizational reforms to overcome the negative situation. in turn, non-personalization, as the absence of a direct reference to a specific addressee, allows the principle to communicate with an indefinite circle of subjects of the same name equally, often independently not only of their social role, but also of their legal status.22 21 john bell, boyron sophie, & whittaker simon, principles of french law, second edition, vii-ix (oxford university press: n.-y, 2008). x 22 hart, supra note 2, at. 127. http://journal.unnes.ac.id/sju/index.php/jils 490 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils d. orientation to duty the legal principle focuses on the performance of actions that are prescribed by the modes “forbidden”, “allowed”, “mandatory” (arnold t.w. 1969). the imperative content of the legal principle orientes the subject not to the ontological level of behavior, but to the deontological one. the principle reflects a model of behavior, an ideal image, which, according to the subjects of social construction, to the greatest extent allows satisfying the interests of a person, society and the state and (or) ensuring the rule of law. at the same time, the most general legal principles are abstract ideas expressing an appeal to certain social and legal values, and, thus, they act only as the most general guide of behavior, not offering any specific patterns of it, which requires a feedback mechanism, first of all, through the judicial system, when, as part of the application of the principle by interpretation, the possible facets of its understanding are revealed. e. the objectivity of the legal principle of legal reality although the legal principle is of a constructive nature, its content is determined not only by the legal consciousness of the reference group, but also by the specifics of legal communication—both within the group and between groups. in a transitive society, this feature is enhanced. the reference group in the design of legislation may be guided by legal borrowing. at the same time, there is a transfer of legal principles developed in the legal reality of the donor society and often not corresponding to the legal reality of the recipient society. in this situation, the reference group constructs a new reality, and the approved new legal principles simultaneously fulfill two roles. on the one hand, they contribute to the establishment of a new legal reality. on the other hand, their content, being determined by the legal reality of the donor society, in the formation of the legal reality of the recipient society, also objects the reality of the donor society.23 23 brian h. bix, introduction. in: frank j. law and modern mind xxviii-xxx, (routledge, london, n.-y, 2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 491 available online at http://journal.unnes.ac.id/sju/index.php/jils thus, the indicated sign is by no means understood as the objective nature of legal principles, but only indicates a certain degree of objectivity of the content, which does not exclude the refraction of their content through the consciousness of subjects: as we noted, legal principles per se differ essentially in mixed, objective-subjective character. at the same time, legal principles participate in the process of legal formation as not only ideas, but also basic norms with the most general and abstract content. the construction of a new legal reality requires from reference groups not only the positioning of its theoretical foundations, but also their normative consolidation. the legal principle verbalized in a legal norm for effective perception among recipients and further social legitimation should not only be formulated, but also detailed. consequently, the effectiveness of the impact of legal principles on legal reality is associated with their consolidation not only in the norms-principles, but also in the norms-definitions. in the latter case, the principle not only constructs a new reality, but also objectifies the existing one, because it is formulated in the traditions of the legal system of the recipient society. thus, legal principles become the value basis not only of lawmaking,24 but also of constructing legal reality at other levels. the mutual process of constructing reality and objectifying the existing reality is embodied at the level of the realization of law, first of all, in the activities of law enforcement bodies, which at the stage of legal qualification, on the one hand, form legal reality by issuing relevant authoritative individual legal decisions, and on the other, approach to the understanding of legal principles that is in demand by the prevailing sociocultural tradition and leads to a more effective legal regulation. however, the perception and reproduction of legal principles in legal behavior is non-linear, especially in a situation of legal borrowing. if the behavior of reference groups is unambiguously based on new principles, then the recipients of legal communication perceive the new principles cognitively and reproduce functionally only if they correlate with the national legal tradition. in this case, the convention of legal policy and the harmonization of legal reality are achieved. the indicated process of harmonization of legal reality on the basis of new legal principles introduced 24 raz, supra note 2. http://journal.unnes.ac.id/sju/index.php/jils 492 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils in it, as we noted above, can be quite controversial and take a relatively long period of time. f. the rule of law being a form of expression of a social system of legal values, legal principles not only have an imperative effect, but also determine the content of the legal system. it is the principles that give this system organizational and value unity. even without being included in legal norms, the principles not only determine their content, but also the correlation of state and social interests, ensuring the legitimization of legislation and helping to increase the efficiency of its implementation and harmonization of legal reality. the supremacy of the legal principle can be considered both ideologically and normatively. on the one hand, the principles determine the most significant features, directions in legal regulation, and thus are directly related to legal ideology, being its guides in the normative array. in this regard, the principle is supreme as the most important and defining idea that lawmaking actors are guided by, creating, changing, and terminating the rule of law. moreover, the choice of the main ideas that become legal principles depends on the sociocultural context that dominates the representations of the reference (ruling) groups and on the social relations that have developed during this period and the features of their legal regulation. for example, during the development of the current constitution of russia, adopted on december 12, 1993, the idea of priority of human rights over legislation, that is, positive law, was taken as a basis, as expressed in art. 2 and a number of other articles of the constitution. that is, the legal principle of the priority of human rights, that is, natural law over positive, is put at the forefront. however, one should not make an unambiguous conclusion that the constitution of the russian federation is based solely on the concept of natural law. in a number of her other articles, one can notice formulations testifying to the influence of normativism and the sociological concept of understanding of law on its content. however, nevertheless, a construction with the principle of the priority of human rights over legislation confirms our thesis about the supremacy of principles, especially in the context of the priority of the principle over other forms of law, first of all, legislation. that is, the rule of law in this case looks uniquely secondary to the rule of law. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 493 available online at http://journal.unnes.ac.id/sju/index.php/jils g. stability of the legal principle legal principles are a constant of both official25 and unofficial law. they ensure the continuity of the legal system with the legal tradition, giving it a certain stability and contributing to its legitimation. however, the constancy of principles does not mean their value absoluteness and universality. the transformation of legal reality in the direction determined by socio-cultural development, both at this historical stage and taking into account the continuity of the existing legal experience and tradition, presupposes a change in legal principles as fundamental provisions that provide reflection on legal progress and its assessment by society. unlike legislation, principles are significantly less subject to transformation. a change in legal reality is not only normative and functional, but cognitively (at the level of legal principles) means a fairly successful passage of the bifurcation point and a transition from one relatively stable system to another relatively stable system. the stability of the system will be ensured by legal principles, provided that they are disseminated not only in lawmaking and law enforcement, but also in legal behavior as a value guide. the stability of a principle in legal regulation and legal impact is determined by its place in the general system of legal principles and the space of its distribution. the legal principle of a local group is usually situational, and can change with the adjustment or transformation of intra-group and inter-group legal communication.26 the national legal principle has great stability, although its understanding may change historically. thus, the principle of justice remains relatively stable for westernized societies for several centuries, and determines the content of not only positive, but also social law. however, the further development of this logical chain will be limited by the space of legal civilization but cannot claim global significance. despite the active attempts of western societies to declare the existence of universal principles that are absolute and universal in nature and designed to determine the content and functioning of any national legal reality, regardless of national legal traditions, the legal policies of asian and african 25 lawrence m. friedman, a history of american law. 4th ed. 10, (oxford university press, cambridge, 2019). 26 mark van hoecke, law as communication, (hart publishing, oxford, 2002). http://journal.unnes.ac.id/sju/index.php/jils 494 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils states show that the value basis of legal reality can be and other principles. therefore, attempts at legal transfer and legal expansion of western societies, primarily the united states, are doomed to failure. h. the system-forming nature of the legal principle the construction of legal reality with the maximum allowance for the content and features of the existence of legal principles is able to ensure the value and regulatory stability of not only the positive law system, but also its correlation with other systems of unofficial law. legal principles give stability and uniformity to the legal impact, ensure its legitimacy and effectiveness. thus, the rule of law is formed not only normatively and functionally, but also cognitively, gaining a foothold in discursive contexts.27 in the mechanism of legal regulation and legal impact, the legal principle can be used at several stages and in different quality. firstly, being enshrined in legal norms, or acting as an independent regulator of public relations, it directly affects the behavior of participants in legal relations and ensuring the rule of law. secondly, as a fundamental idea, the legal principle functionally determines the features of the processes of lawmaking and law enforcement.28 thirdly, the legal principle is the value basis of the legal interpretative activities of officials aimed at creating clarifications on the application of legal norms in disputed situations. in connection with the foregoing, it seems fair to note that the legal principle acts not only as a form of law, but also as a basic element of the legal system (the primary element is the rule of law). i. the abstractness of the legal principle the legal principle acts as a highly generalized imperative requirement for legal action. being a reflection of legal values, principles affect the human 27 n.g. hramcova, teoriya pravovogo diskursa: bazovye idei, problemy, zakonomernosti [theory of legal discourse: basic ideas, problems, patterns], 10 (izd-vo kurganskogo gos, un-ta: kurgan, 2010). (in russ.), 49. 28 celesta a. albonetti, an integration of theories to explain judicial discretion, 38 social problems 247, 247–266 (1991). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 495 available online at http://journal.unnes.ac.id/sju/index.php/jils mind and behavior at all levels of legal reality (skorobogatov a.v., bulnina i.s., krasnov a.v. and tyabina d.v. 2015). with regard to lawmaking, the principles determine the value guidelines of the legislative process both normatively (in the form of norm-principles enshrined in the text of the law) and cognitively (as a set of fundamental ideas that determine the process of adoption and content of laws). in law enforcement, the principle acts as the basis for the value correlation of law enforcement and law enforcement acts in the content and form of normative legal acts. in legal behavior, the principles are a value reference point for legal actions that comply with the regulatory framework of the law and ensure the lawfulness and law-abiding behavior of the subject (individual, local group, society) and, constructing a conflict-free coexistence of members of the group with which a person identifies himself. the content and role of principles in the legal impact is revealed through the functions that they perform. the regulatory function reflects the participation of the legal principle in the legal regulation of public relations. the regulatory function is carried out by the principle both directly in the form of fixing principles in legal norms (norm-principle), and indirectly. in the latter case, the principle is inductively derived from positive or social law and is the cognitive and functional basis of the processes of lawmaking and law enforcement, especially law enforcement. the principle in this case imperatively determines the boundaries of the behavior of subjects and serves as a value guide for decisions made.29 (gurvitch g. 2001). the protective function of the legal principle is aimed at ensuring the protection of the interests of participants in legal communication. the implementation of this function is carried out in the case of both vertical communication and horizontal. in the first case, the imperative function does not allow the addressee to exert uncontrolled influence on the addressee. it is a ban on using coercion against the addressee and ensuring the observance of the interests of all participants in communication. in the second case, communication participants simultaneously act as the addressee and the addressee. the implementation of the protective function in this case is expressed in the fact that the subjects in the implementation of individual interests are limited not only by the conventionality of group 29 georges gurvitch, sociology of law, (transaction publishers, new brunswick, 2001). http://journal.unnes.ac.id/sju/index.php/jils 496 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils interests, but also by the coercive force of group influence (actual or potential). legal principles provide a uniform interpretation of the rules of law and legal actions by the subjects of communication, suppressing possible deviations as inappropriate social conventions. this makes it possible to limit and / or repeal the norms of positive law, which are or are recognized as illegitimate by the social majority, since they not only create obstacles to legal communication, but also threaten conflict-free social coexistence30 and therefore, can lead to disharmonization of legal reality. the instrumental function of legal principles expresses their value and system-forming nature and reflects their leading role in the legal impact on the legal system. it is the principles that determine the correlation of value orientations, lawmaking, law enforcement and legal behavior and ensure the harmonization of legal reality. ensuring the consistency of law and legal impact, the principles reflect the frontier nature of the impact of law on the consciousness and behavior of subjects. setting the boundaries of the legal and non-legal principle, they are guided not only by legal, but also by social values, and determine the ability of the addressee to influence the consciousness and behavior of the addressee not only by legal, but also by psychological, sociocultural and other means. thus, the direction of legal communication is set, and the instrumental capabilities of the addressee of communication and the degree of value reflection of these means by the addressees of communication are established. the function of standardizing the legal principle is related to the fact that it is the principle that is the single value reference of social and positive law. the implementation (including formalization) of the principles in legislation and law enforcement practice ensures the correlation of legal and legal norms and contribute to the legitimization and improvement of the effectiveness of legislation in order to achieve legal conflict-free conflict and harmonize legal reality in general. to the greatest extent, legal principles perform a communicative function. thanks to the principles, both vertical and horizontal legal communication takes on a unified value character. a uniform understanding of the boundaries of legal and non-legal, on the one hand, allows the addressee of vertical legal communication to exert legal influence on the addressee with the least possible use of coercion. on the other hand, the 30 habermas, supra note 9, at. 298. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 497 available online at http://journal.unnes.ac.id/sju/index.php/jils addressee of legal communication, perceiving the legal impact as a means of formalizing social values, implements legal norms intuitively. to an even greater extent, the communicative function of legal principles is realized in horizontal communication. it is the principles that provide the methodological basis for the conventionality of legal behavior in the community. the meaning of communicative function is transformed in a digital society.31 the development of digital justice and the virtualization of legal reality contribute to a decrease in the role of traditional legal standards in legal communication. however, at the same time, the conventional component of horizontal legal communication is expanding, which contributes to the construction of legal rules not so much for real communication as for communication in the information space. the function of systematizing legal principles is related to their role in the process of systematizing the legal array. the principles determine the limits of legal regulation not only vertically, but also horizontally. they establish the boundaries of certain subjects of legal regulation. thus, a methodological basis is being formed for implementing industry codification and improving the quality of the legal system and improving the legal effectiveness of legal regulation. the participation of legal principles not only directly in the process of legal regulation, but also the interpretation of the norms of positive law, allows us to highlight the function of stabilizing legal regulation performed by them. this function is expressed in the fact that the principles make it possible to determine the unified value foundations of lawmaking, law enforcement and legal behavior and to ensure uniformity of the subject's legal actions at all levels of legal reality, not only in a synchronous, but also in a diachronous context. conclusion thus, the legal principle as a philosophical-legal category is the conventional result of legal communication and can be represented in the epistemological, 31 david r. johnson & david post, law and borders: the rise of law in cyberspace, 48 stanford law review 1367, 1367-1402 (1996). http://journal.unnes.ac.id/sju/index.php/jils 498 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils ontological and axiological aspects. the epistemological legal principle is a fundamental concept that determines the nature of the analysis, interpretation and assessment of legal reality through the use of tools of postclassical rationality. the ontological legal principle is a fundamental form of law that characterizes the cognitive aspect of legal reality, capable of ensuring the homeostasis of the legal system and the focus of law formation and law enforcement. axiologically, the legal principle acts as a value system that characterizes the specifics of individual and social reflection of legal reality and determines the features of the design, development and functioning of legal reality. acknowledgments the authors express deep gratitude for the invaluable help and support provided to them during the research by the staff of the department of theory of state and law and public law disciplines of kazan innovation university named after v.g. timiryasov (ieup), branch departments “history. historical sciences” and “state and law. jurisprudence” of the international mariinskaya academy named after m.d. shapovalenko, as well as of the department of theory and history of law and state of the kazan branch of the russian state university of justice. references albonetti, c. a. 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(eds.) rechtsphilosophie im 21. jahrhundert. suhrkamp: frankfurt-am-main. (in germ.) llewellyn, k. (1989). the case law system in america. chicago: the university of chicago press. lyons, d. (1977). principles, positivism, and legal theory. the yale law journal. 87 (2). 415-435. m. van hoecke. (2002). law as communication. oxford: hart publishing. http://journal.unnes.ac.id/sju/index.php/jils 500 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils miller, d. 1999. principles of social justice. cambridge: harvard university press. postema, g. j. (2003). law’s melody: time and the normativity of law. a realist approach to the objectivity of norms and law. associations. journal for legal and social theory, 7 (1). 227-239. puchta, g.f. 1965. das gewohnheitsrecht. 2 vols. reprint, wissenschaftliche buchgesellschaft: darmstadt. (in germ.). raz, j. (1972). legal principles and the limits of law. the yale law journal, 81. 823-854. raz, j. (2005). “the rule of law and its virtue”. in: bellamy, r. (ed.). the rule of law and the separation of powers. london: routledge. rüthers, b., & fischer, ch. (2010). rechtstheorie: begriff, geltung und anwendung des rechts. 5. auflage. verlag c. h. beck: münchen. (in germ.) selznick, p. (1961). sociology and natural law. natural law forum, 61, 84-108. skorobogatov, a.v, bulnina i.s., krasnov a.v., & tyabina, d. v. (2015). legal reality as a jurhal category. mediterranean journal of social sciences, 6 (3). 664-668. skorobogatov, a.v., & malik, a. a. (2019). legitimaciya zakona v yuridicheskom diskurse [legitimation of law in juridical discourse]. actual problems of economics and law, 13 (3). 1370–1378 (in russ.). wiethölter, r. (2011). proceduralization of the category of law+. german law journal, 12(1), 465-473. wright, r. g. (2017). objective and subjective tests in the law. the unh law review, 16(1). 121-146. about authors prof dr. oleg yurievich latyshev is a legal practitioner and president of international mariinskaya academy (ima), russia. prof. andrei valerievich skorobogatov is an associate professor department of theory of state and law and public law disciplines, kazan innovation university n.a. v.g. timiryasov (iep), academician in the sections “history-historical sciences” and “state and law-jurisprudence” of international mariinskaya academy. prof. alexander valerievich krasnov is an associate professor department of theory and history of law and state, kazan branch of the russian state university of justice. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 257 available online at http://journal.unnes.ac.id/sju/index.php/jils book review constitutional amendments: making, breaking and changing constitutions (2019). oxford: oxford university press, 338 pages, isbn 9780190640484 bisariyadi constitutional court of republic of indonesia  bisariyadi@mahkamahkonstitusi.go.id, bisariyadi@mkri.id 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. title of book : constitutional amendments: making, breaking and changing constitutions author : richard albert language : english publisher : oxford university press pages : 338 pages year : 2019 how to cite bisariyadi, b. (2020). constitutional amendments: making, breaking and changing constitutions (2019). oxford: oxford university press, 338 pages, isbn 9780190640484. jils (journal of indonesian legal studies) 5(1), 255-262. https://doi.org/10.15294/jils.v5i1.35965. nationally accredited journal (sinta 2) jils (journal of indonesian legal studies) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue 1, may 2020 issn (print) 2548-1584 issn (online) 2548-1592 http://journal.unnes.ac.id/sju/index.php/jils 258 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils when a constitutional judge willing to spend his time to give a review to a book, it is a great sign that the book has some appeals to offer. yet, the book that is currently will be reviewed is not only discussed by one but two constitutional judges. at the end of november 2019, two constitutional judges, saldi isra and i dewa gede palguna, discussed a book entitled “constitutional amendment: making, breaking and changing constitutions” written by richard albert. the author also has the opportunity to join the discussion that was held in the constitutional court. the journey to indonesia was part of albert’s roadshows to introduce his recent book. the attention to the book did not only appear in indonesia. in the author’s origin, north america, the book received great acknowledgment from a wide range of legal and political scholars whom people often used to reference their works. distinguished names like bruce ackerman, tom ginsburg, ran hirschl, vicki jackson and mark tushnet, encourage audiences to have a close examination of this recent richard albert’s publication. richard albert, himself, is not a foreign name to political science communities, as well as constitutional law academics. albert is one of the founders and editors of the international journal of constitutional law (icon). the book born from albert’s endeavor to tackle the issue of constitutional amendments for the past four years. starting from his assignment as associate professor at yale university, in the 2015-2016 academic year, richard albert began to install the core part of this book. the work consists of a series of intellectual labor. it is not a single product that happens overnight. albert repeatedly tested his theses by publishing them separately in several journals. there are, at least, five articles that were http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 259 available online at http://journal.unnes.ac.id/sju/index.php/jils published in peer-reviewed journals which became the foundation for each chapter of the book. he, then, develops the ideas and adds cases for comparative examples in the book. the book offers two distinct novelty as its strength. first, the book raised a very important issue in the constitutional discourse but rarely been discussed. the author has a precise expression of the issue where he called it as an uncharted terrain. a written constitution is almost a must in current modern states. even if it is not written, every entity that declares itself as a state must have a constitution, written or unwritten. each constitution incorporates rules on its amendment process. constitutionalism holds that the constitution is a supreme law that limits power and governs people's lives. therefore, amendment rules in the constitution are the rules that changing the rule of the games. the paramount of the issue on constitutional amendment did not go inline with the interest of the scholars and the number of research that studies it. although its limited, richard albert is not alone. earlier, yaniv roznai has published a book titled "unconstitutional constitutional amendments: the limits of amendment powers" (2017). roznai takes a different path from albert where he focused more on the issue of unamendable articles in the constitution. albert’s book, on the other hand, explores constitutional amendment provisions stipulated in each constitution. nonetheless, albert also alludes to the classification that can be made against the unamendable articles, in chapter four of his book. to research a subject that only a few have steps in needs a strong and critical attitude. the constitutional amendment rules are a sine qua non provision in every constitution. it is an avant-garde avenue that can be taken in terms of adapting to changes in society. nonetheless, no one has ever ventured to approach it as a theory. http://journal.unnes.ac.id/sju/index.php/jils 260 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils the hefty obstacle face to create a theory on the constitutional amendment is that each constitution has unique rules of amendment provision. in regards to the above, the second strength of albert’s works is his mastery in capturing the constitutional amendment process in many countries around the globe and mapping them as well as structuring their similarities. the author does not explicitly mention the total number of countries for which he is studying. however, in the introduction, the author mentions the countries which are subject to his study in each chapter. unfortunately, the author does not disclose his reasons behind the selection. it is far beyond imagination the efforts must be made by the author assuming that the research has to have a consistent same number of states as its objects in each part of the book. besides, the author also seems to put more emphasis on the context of mapping the amendment practices rather than take a comparative approach. in his research, albert concluded that there is a deviation in the practices of the constitutional amendment. the deviation that he coined the term “constitutional dismemberment”. the purpose of changing constitutional provision can be either in the context of corrective, elaborative, reformative or restorative. dismemberment is when the amendment goes beyond the scope of these objectives. albert argues that there are three types of constitutional dismemberment. first, the type of constitutional amendment that aims to advance the goals of liberal democracy or to weaken it. an example of the type of abate liberal democracy is the amendment of the turkish constitution in 2017 which changed the nature of the state from democratic to an authoritarian regime. second, constitutional dismemberment in the framework of bridging the gap from the old constitutional rules to the new constitution. the actual constitution is completely a brand new constitution http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 261 available online at http://journal.unnes.ac.id/sju/index.php/jils but the constitutional actors frame it as an amendment. this serves to seek a middle ground of transition from the former constitutional rules. third, include in dismemberment is an alteration in the basic features in the constitution. the addition or exclusion of the fundamental rights, modification in the political structure and changes in the constitutional identity are examples of the third type of dismemberment. it is important to note that although a deviation, constitutional dismemberment is never been an unsound practice. state practices also show a successful end to the constitutional dismemberment. in 1999-2002, indonesia amended its constitution. the crucial agenda of this amendment is to limit the president's power. numerous provisions changed or added to set presidential term in office, shifting the executive power to make laws to the parliament and also incorporate a new chapter on the protection of fundamental rights. a substantial change also occurs in the political structure. the people's consultative assembly (majelis permusyawaratan rakyat) no longer regard as the highest state institution. the parliament adopts a bicameral with the establishment of the regional representative council (dewan perwakilan daerah). reflecting on albert's theory, the practice of this type of amendment may be classified as dismemberment. in addition, the constitutional amendment actors have a mutual agreement to retain the 1945 constitution as its title despite massive changes to the previous constitution. the reason behind the agreement to keep the title is its effort to maintain continuity between the old constitutional order and changes in the new constitution. was this effort to consider a successful arrangement? currently, there is a constitutional discourse in indonesia to have another change to the constitution. one issue for the amendment is to restore the people's consultative assembly’s power to determine the http://journal.unnes.ac.id/sju/index.php/jils 262 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils direction of the state. looking back at the dismemberment theory, the desire to change the constitution by returning to the old rules is one indication of the failure to maintain the continuity of constitutional changes. the new rules contained in the amendment to the constitution are deemed incompatible so it is necessary to return to the old constitutional rules. however, this is still a new developing issue. the phenomenon also may be captured as how the work of richard albert gaining its importance to understand further on constitutional amendment one thing is certain, the issuance of this publication has succeeded richard albert in establishing himself as a leading scholar in the field of constitutional amendment. the mapping he did through this book has become a groundbreaking theory. many people will refer to this book as an academic reference as well as a guide for the political actors in their attempt to amend the constitution. about author bisariyadi is researcher at constitutional court of republic of indonesia. he obtained his bachelor of law degree from university of indonesia and master of laws (llm) degree from the university of melbourne australia. as a researcher, author has been involved in many research projects concerning legal studies especially on constitutional law, comparative law, and human rights law. in addition, some of his thoughts have been widely published in various legal journals both national and international and also presented in various scientific forums and conferences. the author also actively publishes his thoughts through online media at https://bisariyadi.wordpress.com http://journal.unnes.ac.id/sju/index.php/jils attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23922aa4a61f • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare jils (journal of indonesian legal studies) volume 5(2) 2020 277 available online at http://journal.unnes.ac.id/sju/index.php/jils research article cybercime in asean: anti-child pornography legislation robert brian smith walailak university, thailand 222 tahiburi, tha sala district, nakhon si thammarat 80160, thailand  r.b.smith@unswalumni.com submitted: march 7, 2020 revised: june 12, 2020 accepted: october 20, 2020 abstract child pornography is one of the most pernicious crimes amongst the various forms of cybercrime. offensive materials can be quickly disseminated over the internet with no respect for international borders. asean leaders undertook at their 31st asean summit to prevent and tackle cybercrime including harmonising their laws. this paper is based on an analysis of the cybercrime legislation of all ten asean countries to determine how the offence of child pornography is covered in their legislation. as the offence has extra-territorial consequences the analysis includes a discussion of the extraterritorial reach of the legislation. it was found that most of the jurisdictions have specific statutes or specific articles in their criminal codes concerning the crime of child pornography. they do not necessarily refer to cybercrime or computer-related crime. mutual cooperation is essential in combating cybercrime as is legislation that clearly defines the offence and is agreed across all jurisdictions. the paper analyses the current status of harmonization of laws in asean and discusses a possible way forward in the harmonization of anti-child pornography legislation across asean. keywords: asean; anti-cybercrime legislation; child pornography; cybercrime; harmonization of laws nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue2, november 2020 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-3369-1106 278 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 277 table of contents ………………………………...………….….. 278 introduction ………………………………………………………. 278 anti-child pornography laws in asean ……………..... 281 i. international treaties ………………………….…………………….. 281 ii. national laws …………………………………………………….…. 282 iii. jurisdiction ………………………………………..………….……… 285 current status of harmonization of laws in asean …………………………………………………………………… 286 i. introduction ………………………………………………………….. 286 ii. treaties ……………………………………………………………….. 288 iii. directives …………………………………………………………….. 289 iv. declarations ………………………………………………………….. 289 discussion ……………………………………………………………. 290 conclusion ……………………………………………………..…… 292 acknowledgments ………………………………………………. 292 references …………………………………………………………… 292 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. how to cite: smith, r. b. (2020). cybercrime in asean anti-child pornography legislation. jils (journal of indonesian legal studies), 5(2), 277-294. https://doi.org/10.15294/jils.v5i2.37931. introduction child pornography as an offence is not new. what is relatively new is the ability of offenders to use cyberspace to produce and distribute such materials almost instantaneously to their clients around the world. this provides a serious challenge to law enforcement agencies as the offence http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 279 available online at http://journal.unnes.ac.id/sju/index.php/jils becomes extra-territorial. in such a case which agency, in which country, has jurisdiction? the overarching concerns of cybercrime and cybersecurity are being addressed by governments around the world. they are recognizing that prevention of all types of cybercrime requires a coordinated international response. in response to these concerns, asean heads of government signed the declaration to prevent and combat cybercrime in november 2017. the declaration acknowledged the importance of harmonizing cybercrime laws and encouraged members to explore the feasibility of acceding to existing regional and international instruments. it also emphasized the need for cooperation between the member states, their agencies and asean dialogue partners as well as relevant regional and international organizations such as aseanapol (asean national police), europol and interpol. the association of southeast asian nations (asean) includes ten member states: brunei darussalam, cambodia, indonesia, lao pdr, malaysia, myanmar, the philippines, singapore, thailand, and vietnam. whilst there is no universally accepted definition of cybercrime this paper has adopted that defined in the convention on cybercrime 2001 (budapest convention). it can be offences against the confidentiality, integrity and availability of computer data systems (art 2 to art 6); computer-related offences where a computer is used to commit a crime (art 7 and art 8); content related offences (art 9); offences related to infringements of copyright and related rights (art 10); and ancillary liability and sanctions including attempting to committing an offence or aiding or abetting an offence (art 11).1 the convention only contains one set of content related offences, namely offences related to child pornography (art 9). child pornography includes pornographic material that visually depicts a minor, or a person appearing to be a minor, engaged in sexually explicit activity or realistic images representing such conduct (art 9). 1 jonathan clough, a world of difference: the budapest convention on cybercrime and the challenges of harmonisation, 40 monash u.l.rev. 698, 711-15 (2014). for further reading, also see, the convention on cybercrime 2001 (budapest convention), hereinafter as budhapest convention; lennon yc chang, legislative frameworks against cybercrime: the budapest convention and asia, 327 the palgrave handbook of international cybercrime and cyberdeviance, 327-343 (2002); zahid jamil, global fight against cybercrime: undoing the paralysis, 109 georgetown j. int. aff., 109-120 (2012). http://journal.unnes.ac.id/sju/index.php/jils 280 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils clough has provided a cogent discussion on harmonization in his critique of the convention on cybercrime. this author has broadened the focus of the original discussion to cover transnational crime. clough emphasizes that ‘harmonized does not mean identical’2 and that what is needed is the ability for enabling enforcement mechanisms to work effectively, taking into account national and regional differences influenced by each party’s legal traditions, history and culture; with key issues including substantive and procedural law; as well as possible legal restrictions or prohibitions on mutual assistance and extradition. he further argues that an effective response to transnational crime must seek a harmonization model that seeks to accommodate and reconcile differences between the parties. he suggests that one solution could be to allow parties to exercise their right to declare reservations so that implementation can be adapted to the local conditions thus addressing the difficulties in achieving consensus between all parties. finally, he argues that, in spite of these difficulties, harmonization is critical in the case of transnational crime such as cybercrime as there is a need to ensure that there is no safe haven provided to the offenders and there is effective cooperation between the various law enforcement agencies. nottage et.al recommend that asean should improve its strategies for dealing with social and economic challenges by better promotion, assistance, and coordination from the bottom up rather than adopting a top-down strategy. they called this approach the ‘shared regional value’ (srv). they argue that such an approach allows a regional organization to more likely to reach its full potential if it “explicitly recognizes that the primary interest of each of its members is seeking to advance their national interest; and second, the organization focuses on facilitating the advancement of those interests” in a disciplined way to obtain tangible outcomes and not just focus on process.3 such an approach has been suggested by smith (2019) based on the assessment of the difficulties associated with a region where there is a variety of languages and legal systems. he argues, therefore, that the 2 clough, supra note 1, at 701. 3 luke nottage, justin malbon, jeannie paterson, & caron beatonwells, asean consumer law harmonisation and cooperation (integration through law: the role of law and the rule of law in asean integration) 11587-11593 (cambridge university press, 2019), hereinafter as nottage. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 281 available online at http://journal.unnes.ac.id/sju/index.php/jils drafting of a model set of laws in english, the working language of asean is not a suitable approach. rather, a treaty or convention would be a more appropriate approach. the treaty should set the minimum legal standards that must be achieved but allow for reservations for country specific conditions as long as the treaty’s intent is met. this is independent of the language in which the law is drafted. this research is based on an analysis of the cybercrime legislation of all ten asean countries to determine how the offence of child pornography is covered in their legislation. as the offence has extraterritorial consequences the analysis includes a discussion of the extraterritorial reach of the legislation. finally, it assesses how anti-child pornography laws could be harmonized across asean and whether any of existing harmonization approaches that have been adopted in asean could act as model. anti-child pornography laws in asean i. international treaties all asean members are state parties to the convention on the rights of the child 1989 and all members except singapore are state parties to its optional protocol to the convention on the rights of the child on the sale of children, child prostitution and child pornography 2000. only the philippines is a state party to the convention on cybercrime 2001. finally, all asean members are state parties to the asean convention against trafficking in persons, especially women and children 2015. ii. national laws for this analysis the author has used the child pornography offences enumerated in art 9 of the convention on cybercrime (abbreviated to the convention further in this paper) namely: a) producing child pornography for computer distribution; http://journal.unnes.ac.id/sju/index.php/jils 282 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils b) using a computer system to offer or make available child pornography; c) using a computer to distribute or transmit child pornography; d) procuring child pornography through a computer system; and e) possessing child pornography in a computer system or on computerdata storage media. asean members have been very active since 2015 in enacting new or amended anti-child pornography legislation apparently encouraged and supported by international organizations. six members enacted legislation over that period with myanmar and singapore enacting legislation in 2019. brunei darussalam has included child pornography in its revised penal code 2016. there are two offences: possession of indecent photograph of a child (s 293a) and taking, distribution, showing, advertising, and accessing an indecent photograph of child (s 293b). an indecent or obscene photograph or pseudo-photograph includes ‘data stored on a computer disc or by other electronic means which is capable of conversion into a photograph or pseudo-photograph’ (s 293c). while the offences are defined differently from those in the convention it can be argued that they are compliant. cambodia is dependent on a 2007 royal kram on suppression of human trafficking and sexual exploitation for prosecuting child pornography whilst its draft cybercrime law continues to be discussed within the government. if the draft law is enacted as currently drafted the child pornography offences are fully compliant with the convention. the current law defines child pornography as visible material such as in a photograph or video including in electronic form of a child’s naked body “to excite or stimulate sexual desire” (art 40). the offences are: distribute, sell, lease, display, project or present in a public place (art 41); possess, transport, import, or export child pornography (art 42); and produce child pornography (art 43). indonesia’s child pornography offences are dispersed across a number of laws with two being the most relevant to this study. the law on child protection 2002 criminalizes the economic or sexual exploitation of a child (art 59 and art 88) although what constitutes economic or sexual exploitation is not defined. law no. 44 of 2008 on pornography is an allembracing anti-pornography law that also includes offences related to child pornography. section 1 of the law has a very explicit list as to what http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 283 available online at http://journal.unnes.ac.id/sju/index.php/jils constitutes pornography. it is forbidden to produce, distribute, import or export, duplicate or store pornography (ss 4.1 & 4.2). every person is forbidden from watching and storing pornography (s 8); nor are they to be a model or object in pornography (s9) nor encourage another so to do (s10). it is also forbidden to allow children to participate in pornographic activities (ss 11, 12 & 16). under the lao pdr law on the protection of the rights and interests of children (2006) a person who ‘produces, distributes, disseminates, imports, exports, displays or sells magazines, photographs, films, videos, vcds, dvds or other items of child pornography’ is guilty of an offence (art 86). the law does not specifically refer to crimes committed using a computer system. the sexual offences against children act 2017 of malaysia includes a comprehensive set of child pornography offences; making or producing child pornography (art 5); making preparations to make or produce child pornography (art 6); using a child in making or producing child pornography (art 7); exchanging or publishing child pornography (art 8); selling child pornography to a child (art 9); and accessing child pornography (art 10). as is the case in lao pdr, the act does not specifically refer to crimes committed using a computer. a feature of the act is the inclusion of detailed descriptions as to what constitutes an offence. myanmar enacted the pyidaungsu hluttaw law no. 22/2019 child law in july 2019. at the time of writing in march 2020 there was no official english translation available nor was it possible to obtain an unofficial version. nevertheless, it is possible to identify the key features of the law as it applies to child pornography which is defined in article 3(d) of chapter 1. the definition includes activities undertaken using computer systems including distributing child pornography through websites and social networks. the offences are identified in art 66(d) of chapter 18: namely possessing, offering, selling. or distributing child pornography as well as importing or exporting from abroad. the anti-child pornography act of 2009 of the philippines has a very extensive and explicit set of definitions of child pornography (s 23). the offences (s 22) are not computer dependent. under s 4 (c)(2) of the cybercrime prevention act of 2012 if a computer is used in committing the http://journal.unnes.ac.id/sju/index.php/jils 284 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils offences as prescribed in the anti-child pornography act the penalty is increased by level of that mandated in the anti-child pornography act. as mentioned above, the philippines is a state party to the convention; hence its compliance. the offences are more extensively defined than those in the convention. child pornography in singapore became the defined offence of “child abuse” under the criminal law reform act 2019 which amended the penal code. the child abuse offences are: using or involving child in production of child abuse material (art 377bg); producing child abuse material (art 377bh); distributing or selling child abuse material (art 377bl); advertising or seeking child abuse material (art 377bj); possession of, or gaining access, to child abuse material (art 377bk); exploitation by abusive material of minor of or above 16 but below 18 years of age (art 377bl). like the lao pdr and malaysian legislation, the act does not specifically refer to crimes committed using a computer. as is the case of malaysia, the act includes detailed descriptions as to what constitutes an offence. in 2015 thailand enacted the penal code amendment act (no. 24) to specifically cover the offence of child pornography. the act included a very detailed definition of child pornography to be included in section 1 of the penal code (section 3). briefly, the definition of child pornography means obscene objects or materials of a child under 18 and includes those stored in a computer or other electronic device. a new section 287/1 makes it an offence to possess or forward child pornographic material (section 4). a new section 287/2 makes it an offence for commercial purposes or through trade, to distribute, display in public, make, produce, circulate, or import or export child pornography (item 1). it is also an offence to trade in child pornography or distribute it or display to the public (item 2). finally, it is an offence to publish or disseminate information that a person is carrying out an offence or publishes or disseminates information as to where or how to find child pornography (item 3). vietnam enacted its law on children in 2016. the law classifies use of children for pornography in any form as child sexual abuse (art 4(8)). the law does not define pornography, however. it is an offence under the law to be “involve[d] in child sexual abuse, use violence against children, abuse or exploit children” (art 6(3)). it is also an offence to: “provide internet http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 285 available online at http://journal.unnes.ac.id/sju/index.php/jils service and other services; produce, reproduce, release, operate, disseminate, possess, transport, store and trade in publications, toys, games and other products whose contents cause adverse influence on children’s healthy development” (art 6(10)). iii. jurisdiction all member states recognize extraterritorial jurisdiction over child pornography offenses when the alleged offender is a national of that state as described in their respective legislation: a) brunei darussalam (criminal procedure code art 7(f))4 b) cambodia (royal kram art 3)5 c) indonesia (see world bank and the international centre for missing & exploited children 2015)6 d) lao pdr (see world bank and the international centre for missing & exploited children 2015)7 e) malaysia (sexual offences against children act art 3)8 f) myanmar (child law art 2(b))9 g) philippines – not currently (see world bank and the international centre for missing & exploited children 2015)10 h) singapore (criminal law reform act art 377bo)11 i) thailand (computer crime act s 17 for computer related offences only)12 and j) vietnam (see world bank and the international centre for missing & exploited children 2015).13 4 criminal procedure code (rev 2001) (brunei darussalam). 5 royal kram ns/rkm/0208/005 on the suppression of human trafficking and sexual exploitation 2007 (tr unicef (unofficial)) (cambodia). 6 world bank and the international centre for missing & exploited children, protecting children from cybercrime: legislative responses in asia to fight child pornography, online grooming, and cyberbullying 2015 148-149 (a joint report of the world bank and the international centre for missing & exploited children, 2015), hereinafter as world bank. 7 id., at 173. 8 sexual offences against children act 2017 (malaysia). 9 pyidaungsu hluttaw law no. 22/2019 child law (burmese) (myanmar). 10 world bank, supra note 6. 11 criminal law reform act 2019 (singapore). 12 computer crime act b.e. 2550 (ad 2007) (tr tentative) (thailand). http://journal.unnes.ac.id/sju/index.php/jils 286 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils three member states recognize jurisdiction over child pornography offenses when the victim is a national of that state: a) cambodia (royal kram art 3); b) singapore (criminal law reform act 2019 art 377bo); and c) thailand (computer crime act s 17 computer related offences only). in view of the legal variations across the various jurisdictions the next section describes the current status of legal harmonization in asean to determine whether there is an appropriate model that might be used to better harmonize child pornography laws across the member states, especially as the internet is not constrained by national borders. current status of harmonization of laws in asean i. introduction as discussed in section 1, one of the items that was acknowledged by the asean heads of government in the declaration to prevent and combat cybercrime was the importance of harmonizing cybercrime legislation across asean. the first task of this analysis is to determine whether there have been previous attempts at legal harmonization and the lessons learned. deinla has undertaken a definitive study of the development of the rule of law in asean and has identified significant impediments to regional integration due to the structure of asean itself in which consensus is the norm rather than binding rules or agreements. she found that the focus on economic integration has led asean towards a soft regulatory regime and informal rulemaking which provides some checks on state discretion without limiting the sovereignty of the state and even within the member states themselves the rule of law is highly contested.14 as a result, deinla concluded that the plurality of national interests and the rule of law traditions in member countries are a serious impediment to 13 world bank, supra note 6, at 297. 14 imelda deinla, the development of the rule of law in asean: the state and regional integration 76-80 (cambridge university press, 2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 287 available online at http://journal.unnes.ac.id/sju/index.php/jils developing a consensus on the type of rule of law in regional integration, particularly if it constrains the power of the member states.15 as will be seen below a change is occurring in the asean economic community pillar but there is virtually no change in the asean political and security community pillar. in his critique of the possibility of consumer law harmonization within asean, wibowo argues that differing legal systems and procedures make it difficult to develop suitable procedures to investigate and prosecute cross-border cases. rather than harmonization, wibowo recommends that the focus should be on strengthening and improving aspects of prevention and enforcement of cross-border consumer law with asean member states assisting each other in the development of this capacity.16 this approach is disputed by nottage et al17 who argue that whilst consumer laws of asean member states show considerable disparities in approach it will not necessarily impede “looser harmonization” if supported by stronger trans-governmental networks where the current networks of regulators and consumer groups are already seen as being fairly strong whilst those between legislators and judges are weaker. whilst the local laws “reflect their own regional influences” they further argue that if there are stronger trans-governmental networks it may be a strength rather a weakness in support of the asean model. whilst consensus is the preferred approach, asean has at times unanimously agreed to more formal legal instruments, namely treaties and directives. as will be seen, even then, compliance is largely the concern of the individual member state. asean declarations, on the other hand are statements of intent and are not legally binding on any member, unless, of course, they contain a directive as will be seen is the case of the asean cosmetic directive. 15 id. 16 k. wibowo, the harmonisation of asean competition laws. 156-158 (yeo j, see a (eds.), the asean law conference 2018: a compendium of speeches, papers. presentations and reports, academic publishing, 2018). 17 nottage, supra note 3, at. 176-180. http://journal.unnes.ac.id/sju/index.php/jils 288 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils ii. treaties the asean convention against trafficking in persons, especially women and children 2016 recognizes that, because asean has proximate and connecting borders, there needs to be a transnational approach within asean to human trafficking. for each of offences enumerated in the convention the state parties are required to ‘adopt legislative and other measures as may be necessary to establish as criminal offences’ (art 5(2)). the convention protects national sovereignty and territorial integrity as well as non-intervention in the domestic affairs of another state (art 4(1)). a party cannot exercise its jurisdiction or performance of functions in the territory of another party (art 4(2)). on the other hand, a party must adopt the necessary measures to establish its jurisdiction over the offences when they committed in the territory of that party or on a vessel flying a flag of that party or in an aircraft registered under the laws that party (art 10(1)). a party may also legislate to have jurisdiction if an offence is committed against a national of that party or the offence is committed by a national of that party or a stateless person who has their habitual residency in the territory of that party (art 10(2)). finally, they can legislate for jurisdiction over an offence, committed outside their territory, with the aim to commission a serious crime or offence within its territory (art 10(2)(c)(i). if a state does not allow extradition of its citizens who have committed an offence from its territory it is required to enact a law to cover such cases (art 10(3)). it could also enact legislation in relation to an offender in its jurisdiction [seeking refuge from prosecution in another jurisdiction where the offence was committed] where the current jurisdiction does not allow extradition (art 10(4)). in a related endeavor the international telecommunications union (itu) is working with asean to develop an asean child online protection code as either a convention or directive.18 although asean signed a framework agreement on intellectual property rights in 1995 it was not until asean signed a free trade agreement incorporating a chapter on intellectual property rights with australia and new zealand in 2009 that cooperation on intellectual 18 a gowa, draft asean framework on cop. itu-asean workshop on child online protection, manila 13-14 september 2016. https://www.itu.int/en/itu-d/regionalpresence/asiapacific/ pages/events/2016/ sept-copa/home.aspx accessed 8 oct 2019 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 289 available online at http://journal.unnes.ac.id/sju/index.php/jils property rights accelerated.19 whilst there are no doubt a number of reasons for this change; the most likely is that the signatories recognized that time had arrived to better protect intellectual property rights and australia and new zealand were the right parties to facilitate the process. iii. directives the asean cosmetic directive (schedule b of the agreement on the asean harmonized cosmetic regulatory scheme 2003) is a particularly interesting example of legal harmonization in asean. article 1(1) mandates that member states only allow market access to cosmetic products that conform to the provisions of the directive including the annexes and appendices. member states are responsible for ensuring that the measures in the directive are implemented (art 12) and have ‘full authority to enforce the law on cosmetic products found to be not complying with this directive’ (art 12(4)). the directive also established the asean cosmetic committee to coordinate, review and monitor the implementation of the directive (art 10(1). it should be noted that, in line with asean’s philosophy neither article 10(1) nor anywhere in the directive gives asean the authority to enforce compliance. enforcement relies on mutual cooperation. iv. declarations asean conducts its operations through its three pillars, namely the asean political–security community, the asean economic community, and the asean socio – cultural community which in turn have sectorial committees. this results in the release of dozens of declarations, agreements, communiques and statements on an annual basis. rarely are they intended to be legally binding rather they are statements of intent. in view of this, the asean cosmetic directive which was attached to an agreement is in exception rather than the rule. full details of asean’s operation can be found on their website (asean 2019). 19 nurul barizah, the development of asean's intellectual property rights law: from trips compliance to harmonization, 7 indonesian l. rev. 95, 95-112 (2017). http://journal.unnes.ac.id/sju/index.php/jils 290 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils discussion as has been seen there has not been a consistent approach to child pornography legislation across asean members. some legislation is extensive and in other cases very short. in some cases, the legislation has been incorporated into the criminal code and in other cases it is standalone legislation; at times access to more than one statute is required. in indonesia the situation is even more clouded by including child pornography in an overriding anti-pornography law that applies to all. some statues have extensive definitions of child pornography whilst in other cases it is brief. in some cases, the use of computer systems is included as one method of accessing child pornography whilst in other cases there is no mention of such systems. at the outset it must be acknowledged that this analysis is based on the english translation of the legislation and may have missed some the nuances of the original as noted by smith.20 there are a number of areas where the legislation of each country could be amended to better align their anti-child pornography laws across the asean area, especially as child abuse in the form of child pornography is a pervasive problem throughout much of the region. this requires a common definition of child pornography with the offences covering “traditional” offences as well as those using computer systems and other electronic media. this should be accompanied by the consolidation of the acts/laws covering both types of offences. in the case of indonesia, ideally the offences associated with child pornography should be moved from law no. 44 of 2008 on pornography to the law on child protection 2002. one of the interesting initiatives is that of malaysia and singapore, for example, where “illustrations” are provided as to what actions constitute an offence. extraterritorial jurisdiction over child pornography offences when the alleged offender is a national of that state is implicit in the case of indonesia, lao pdr, and vietnam. ideally, this should be explicitly stated in the child pornography legislation. extraterritorial jurisdiction over child 20 robert brian smith, harmonisation of laws in asean: the issue of language. in: international seminar for politics, administration and development (inspad 2019) 115-120 (walailak university, 2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 291 available online at http://journal.unnes.ac.id/sju/index.php/jils pornography offenses when the victim is a national of that state is more controversial and is very much a matter for the extradition laws of the member state. at this stage there are two items from the convention on cybercrime that would enhance the cooperation between the parties as they attack the scourge of child pornography. the following items should be considered but applied to all forms of child pornography and not just to cybercrime: a) an article on international cooperation modelled on article 23 – general principles relating to international co-operation of the convention; and b) an article on mutual cooperation adapted from the content of title 3 – general principles relating to mutual assistance. as discussed in section 4, asean has used a number of different types of legal instruments to harmonize legislation across the member states. as the suggestions from this review are more aspirational and meant to improve co-operation rather than to change the substantive legislation of the member states a directive would appear to be unnecessary. on the other hand, a declaration would appear to be an ineffective approach. this leaves the possibility of a treaty. the asean convention against trafficking in persons, especially women and children would appear to be an ideal model. the advantage of using this convention as a model is that most of the more contentious issues have already been agreed. there is a clear need for an article on jurisdiction and extradition: article 10 of the asean convention is more relevant than that in the convention on cybercrime. such a convention could include: a) a detailed definition of what constitutes child pornography based on the best practice from analysis of the definitions in existing legislation of the member states; b) a detailed list of child pornography offences including cybercrimes: c) footnotes or “illustrations” that provide examples as to what actions constitute and offence and which ones do not as used in the legislation of malaysia and singapore; d) an article requiring the parties to enact or amend their laws on child pornography to ensure that their definition of child pornography is in conformity with those developed in a) above and that they include all of the offences developed for b) above http://journal.unnes.ac.id/sju/index.php/jils 292 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils e) an article on international cooperation; and f) an article on mutual cooperation. finally, the convention should allow the parties to make reservations to their consent to the articles of the convention. conclusion as has been seen asean members have recognised the pervasive nature of child pornography and are taking action at both the organisational and individual member levels. the analysis has shown that whilst each party has developed its own legislation harmonisation of their laws could strengthen their impact, especially due to the availability of computer systems that allow the offences to become transnational. asean already has a variety of legal instruments that have been developed to further their cooperation. in the case of child pornography and its transition into a cybercrime it is recommended that asean consider developing a convention on child pornography modelled on the asean convention against trafficking in persons, especially women and children. the use of this convention as a model is recommended as most of the more contentious issues appear to have been resolved and agreed by the asean member states. acknowledgments this research is supported by an australian government research training program (rtp) scholarship. references agreement on the asean harmonized cosmetic regulatory scheme, (signed and entered into force 2 september 2003). anti-child pornography act of 2009 (philippines). asean convention against trafficking in persons, especially women and children, signed 21 november 2015 (entered into force 8 march 2016). asean declaration to prevent and combat cybercrime, signed 13 november 2017. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 293 available online at http://journal.unnes.ac.id/sju/index.php/jils association of southeast asian nations (2019) home, https://asean.org/ accessed 11 october 2019. barizah, n. (2017). the development of asean's intellectual property rights law: from trips compliance to harmonization. indonesian law review 7(1): 95-112. broadhurst, r. (2006). developments in the global law enforcement of cyber‐crime. policing: an international journal of police strategies & management, 29(2), 408-433. doi: 10.1108/13639510610684674. chang, l. y. (2020). legislative frameworks against cybercrime: the budapest convention and asia. the palgrave handbook of international cybercrime and cyberdeviance, 327-343. clough, j. (2014). a world of difference: the budapest convention on cybercrime and the challenges of harmonisation. monash university law review 40: 698-736. computer crime act b.e. 2550 (ad 2007) (tr tentative) (thailand). convention on cybercrime, opened for signature 23 november 2001, unts no 40916 (entered into force generally 1 july 2004). convention on the rights of the child, opened for signature 20 november 1989, 1577 unts 3 (entered into force 2 september 1990). criminal law reform act 2019 (singapore). criminal procedure code (rev 2001) (brunei darussalam). cybercrime law (cambodia (draft v.1 unofficial translation to english). cybercrime prevention act of 2012 (philippines). deinla, i. (2017). the development of the rule of law in asean: the state and regional integration. cambridge: cambridge university press, kindle edition. gowa, a. (2016). draft asean framework on cop. itu asean workshop on child online protection, manila 13-14 september 2016. https://www.itu.int/en/itu-d/regional-presence/asiapacific/ pages/events/2016/ sept-copa/home.aspx accessed 8 oct 2019 jamil, z. (2012). global fight against cybercrime: undoing the paralysis. georgetown journal of international affairs, 109-120. law no. 44 of 2008 on pornography (indonesia). law on child protection 2002 (tr refworld) (indonesia). law on children (law no. 102/2016/qh13) (tr softlaw) 2016 (vietnam). law on the protection of the rights and interests of children (translation endorsed by the law committee of the national assembly of the lao pdr) 2006 (lao pdr). nottage, l., malbon, j., paterson, j., and beaton-wells, c. (2019). asean consumer law harmonisation and cooperation (integration through law: the http://journal.unnes.ac.id/sju/index.php/jils https://asean.org/ https://www.researchgate.net/deref/http%3a%2f%2fdx.doi.org%2f10.1108%2f13639510610684674?_sg%5b0%5d=wvqmrqqzu2mw1zilzh-h741rjk1xi9cigzxluluavouksp_njie9azit1xozk7tfy3sysq-aqiinwvjdrft74xsjww.pin6lxw5m1r-gavsi-aag197ckzq7me6oxmx0yy-ii8q93tda0url2rndykf9raqiwifawg46bmybkkbo7qg-q 294 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils role of law and the rule of law in asean integration) cambridge: cambridge university press, kindle edition. optional protocol to the convention on the rights of the child on the sale of children, child prostitution and child pornography, opened for signature 25 may 2000, 2171 unts 227 (entered into force 18 january 2002). penal code (chapter 224) (current version as at 15 oct 2019) (singapore). penal code (rev ed 2016) (brunei darussalam). penal code amendment act (no. 24) b.e. 2558 (2015) (tr wikisource) (thailand). pyidaungsu hluttaw law no. 22/2019 child law (burmese) (myanmar). royal kram ns/rkm/0208/005 on the suppression of human trafficking and sexual exploitation 2007 (tr unicef (unofficial)) (cambodia). sexual offences against children act 2017 (malaysia). smith, r.b. (2019). harmonisation of laws in asean: the issue of language. in: international seminar for politics, administration and development (inspad 2019). thailand: walailak university. wibowo, k. (2019). the harmonisation of asean competition laws. in: yeo j, see a [eds.], the asean law conference 2018: a compendium of speeches, papers. presentations and reports, pp 156-158, singapore: academic publishing. world bank and the international centre for missing & exploited children, protecting children from cybercrime: legislative responses in asia to fight child pornography, online grooming, and cyberbullying 2015 (a joint report of the world bank and the international centre for missing & exploited children, 2015). about authors dr. robert smith is an australian international development specialist currently working on projects in nepal and cambodia. most of his international experience is in south asia and southeast asia. he is also an academic advisor at walailak university in nakhon si thammarat thailand. in addition, he is currently an off-campus master of philosophy (law) student at the university of new england in armidale, australia. his thesis topic is cybercrimellegislation in asean: cooperation and harmonisation. he is an active researcher with his wife who is a law lecturer at walailak university. his recent publications include: b. smith & n. n. smith (2019) investor-state dispute settlement and infrastructure projects: a potential impediment to good engineering and planning outcomes in australia?, australian journal of multi-disciplinary engineering, doi: 10.1080/14488388.2019.1619503, smith, robert brian; smith, nucharee nuchkoom: & smith, darryl robert (2015) “recent development of an emission trading scheme in thailand” in ken'ichi matsumoto & anton ming-zhi gao (editors) economic instruments to combat climate change in asian countries, pp 153-172. the netherlands: kluwer law international, dan smith, robert brian; smith, nucharee nuchkoom: & smith, darryl robert (2014) “fit and its implementation in thailand: legal measures, implementation, challenges, and solutions” in anton ming-zhi gao & chien te fan (editors) legal issues of renewable energy in the asia region: recent development in a post-fukushima and post-kyoto protocol era, pp 127146, the netherlands: kluwer law international. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.1080/14488388.2019.1619503 93 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 volume 3 issue 01 may 2018 jils 3 (1) 2018, pp. 93-108 issn (print) 2548-1584 issn (online) 2548-1592 bpd empowerment program in optimizing village financial implementation (perspective law no. 6 of 2014) meinanda anggun maharani meinanda anggun maharani postgraduate program, faculty of law, universitas negeri semarang  anggun_maharani21@yahoo.com table of contents introduction ………………………………………………………… 92 society empowerment: beyond theory and technique ………….………………………………………………...... 96 the empowerment of bpd in optimizing village financial implementation based on law number 6 of 2014 concerning to village (village act) .…………. 102 conclusion ……………………………………………………………. 106 bibliography …………………………………………………………. 106 * i would like to thank to mr dani muhtada mpa phd, ms dr rodiyah spd sh msi, and professor sudijono sastroatmodjo msi for their intensive supervision. i also would say thanks to postgraduate students of faculty of law unnes for very interesting discussion. this paper developed from my master thesis, and all data obtained has been confirmed to all parties involved on this research. 94 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang meinanda anggun maharani jils 3 (1) may 2018, 93-108 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on january 2018 approved on february 2018 published on may 2018 village government played an important role because it is considered as a basic element that directly interacts with the society and the policy or decision issued felt by the society directly. the issues studied were how is the bpd empowerment in optimizing village financial implementation as perspective law no.6 of 2014? and how is the model of bpd empowerment in optimizing village financial implementation as perspective law no.6 of 2014? the results showed that (1) bpd empowerment of pringsari village is not optimal in conducting village finances related to activities in pringsari village, (2) the model of bpd empowerment to the society has not been held optimally and still not transparent. the conclusion of the bpd empowerment in optimizing village financial implementation pringsari village is not optimal yet. the model of bpd empowerment in pringsari village that found is the achievement of apbdes planning process. suggestion for the villager head and bpd in pringsari village is realize the roles, jobs, functions and positions respectively. keywords: regional autonomy, village administration, empowerment model introduction the principle of regional autonomy held by the regional government is not only to the provincial and regency/city levels only, but also applied to the sub-regency level, urban communities level, and village level. the village government as the element of the most basic government in the region plays an active role in implementing the principle of regional autonomy provided by the central government to local governments in this case autonomous regions (widjaja 2002: 9) village government is said play an active role because it is considered as a basic element that directly interacts with the society and the policy or decision issued felt by the society directly. it has an active role in conducting the village development. in the development process, the village government is given full authority in its implementation, it is called village autonomy because the village has rights and authority to their own households implementation. carrying out the matters that concerning the public insterest, how to cite (chicago manual style) maharani, meinanda anggun. “ bpd empowerment program in optimizing village financial implementation (perspective law no. 6 of 2014)”, journal of indonesian legal studies (jils), 2018 3(1): 93-108 95 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 the villager head is responsible to the society through the village deliberation institution and then delivers a report on the execution of its duties to the existing government above it either the sub-regency government or regency/city government (nurcholis 2005: 25) the village deliberation institution has several functions and authority to supervise, such as supervision in the implementation of village regulations, the village government’s budget and the villagers head decision and development conducted by village. the village deliberation institution members based on the representation of the territories that choosed democratically have a full responsibilty to the society also implement a transparant supervision to the society (soekanto 2004: 29) regulation of the minister of home affairs number 113 of 2014 concerning financial management of the village asserted that bpd held village consultation in the framework of village development plan preparation which become the guideline for village government to arrange vilage’s rkp (village government work plan) design and list of village’s rkp proposal. the villager head of pringsari village pringapus sub-regency semarang regency explains that the interaction between the village governments and the village deliberation institution cannot be separated and related to each other in the village government system. the problem faced by the villagers head and bpd in building democratic governance are the lack of educated villagers who do not understand what the program wants by the village. 1 pringsari village arranges the development planning as its authority with references to the regency/city development planning. the village development plan document is the only planning document in the village and as the basis for preparing the village government budget. the main basis of the programs and activities in the village is the village deliberation and the village development planning deliberation which established priorities for development programs and activities based on village needs assessment. 2 this paper has two main issues, first, is concerning to how is the bpd empowerment in optimizing village financial implementation as perspective law no.6 of 2014, and second, concerning to how is the model of bpd empowerment in optimizing village financial implementation as perspective law no.6 year 2014. the paper used qualitative methods in a phenomenon that serves to more easily understand the phenomena that occur in society that has not been known. a qualitative approach is an approach that construct a knowledge statement based on constructive perspectives (eg, meanings derived from individual experience, social and historical values, with the aim of building a particular theory or knowledge politics), or from a participatory perspective (eg orientation against politics, issues, collaboration, or change), or both (creswell 2014: 6). 1 interview with mr. zaenal on july 19th 2017 2 interview with the chief of bpd, mr. supriyanto s.tp on july 19th 2017 96 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang meinanda anggun maharani jils 3 (1) may 2018, 93-108 http://journal.unnes.ac.id/sju/index.php/jils the qualitative aspect using case study research on optimizing the empowerment of bpd in terms of village finances, activities that have been implemented or planned in pringsari village. it starts with the fist step of the interview with the pringsari’s villager head about village development, village finance and the bpd participation as village government in the development process and so forth in managing the village finance in pringsari village. interview with the head of bpd to find out the job and the main function it and participation as the village government in the village development. interview with the member of bpd related to bpd membership in arranging the village financial management and the activities that have been implemented for pringsari village in terms of plans for the village, the members’ participation in the preparation of village finance management to the village development, also the relationship between the village governments to each other and the interaction with society. interview with the villager about the village government tranparancy in village financial management and activities in pringsari village. interview with the villager officials about their joband function. furthermore, this paper also recognized as a sociological juridical legal research (socio-legal research). a sociological law research, then researched first is secondary data, to then to then proceed with research on primary data in the field, or to society (soekanto 1986: 52). in this law research, the writer do research by obtaining information from the authorities of pringsari village (villager head, bpd head, bpd members, and the villagers), then conduct an analysis of the results of the study with the legislations that are the 1945 constitution, law no.6 of 2014 on villages, presidential regulation no.43 of 2014 on the implementation of law no. 6 of 2014 on villages, regulation of the minister of home affairs no.13 of 2014 on village financial management, law no.23 of 2014 on regional government, law no.14 of 20018 on public information openness, minister regulation no.72 of 2006 on general guidelines on village arrangement, minister regulation no.72 of 2005 on villages. the sociological aspect of this research is that the law is applied in the practice of the bpd empowerment model in managing the village finance management, the optimization of bpd and the village head to prepare an activity plan in accordance with the financial arrangement based on the applicable law. society empowerment: beyond theory and technique this concept is developed by experts and practitioners, among others by friedman (1992). empowerment can be interpreted as alternative development, which desires inclusive democracy, economic growth equality, gender equality and intergenerational equality appropriate, gender equality and intergenerational equations) (kartasasmita, 1997: 21) 97 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 there are 3 main components to understand empower according to page and czuba (bakti 2003: 42): 1. empowerment is multi-dimensional, in which involved dimensions of sociology, psychology, economics and other dimensions. empowerment can take place at various levels, such as individuals, groups and communities 2. empowerment is a social process 3. empowerment is a process similar to a journey for a developing party the theory of society empowerment used in the process of empowerment, such as: power dependency theory power is the key concept to understanding the empowerment process. modern thinking about power begins in the writings of nicollo machiavelli (the prince, early 16th century) and thomas hobbes (leviathan century, mid-17). the purpose of power is to prevent the group from participating in the decision-making process and also to obtain the group's passive approval for this situation. power is an integral part of social interaction. power is an integral feature of social life (craig and may, 1995 in hikmat, 2004) furthermore, in the context of empowerment, the theory of dependence is associated with the usual power in the form of ownership of money / capital, to achieve a condition of power / strong / independent, then a group of people must have a strong financial / capital. in addition to money / capital, the science / knowledge and aspects of people / a large group of people / mass must also be owned so that the group has the power. groups that have power then the group will be empowered. (syahyuti 2006:45) the social system theory talcott parsons (1991) made the functional theory of change quoted by sumodiningrat gunawan 2002. parsons also analogized social change in society as well as growth in living things. the main component of parsons thinking is the process of differentiation. parsons assumes that every society is composed of a different set of subsystems based on its structure and its functional significance for the wider society. when society changes, generally the society will grow with better ability to cope with life problems. it can be said that parsons belongs to a group that views the optimism of a process of change. (sumodiningrat, gunawan 2002: 31) if included in the aspect of society empowerment, then the theory of this social system leads to one of the strengths that must be owned by a group in order that the group is empowered that is having a group of people/mass. if the group has a large mass and can survive and grow larger, then the group can be said to be empower (khairuddin 2000: 25). 98 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang meinanda anggun maharani jils 3 (1) may 2018, 93-108 http://journal.unnes.ac.id/sju/index.php/jils conflict theory ralf dahrendorf’s conflict theory emerges as a reaction to the theory of structural functionalism that is less concerned with the phenomenon of conflict in society. conflict theory is a perspective that views society as a social system consisting of different interests where there is an attempt to conquer other components in order to fulfill other interests or to maximize their interests (beilharz, peter 2003: 53) conflict is not defined from the aspect of the perpetrators of the conflict, but it is a problem in social interaction. conflict becomes the main thing of association that always arise dynamics in society. there are known several theoretical approaches to explain conflict. as a social reality. among the disparity approaches in the economic world that explain that the emergence of conflict due to the imbalance between demand and availability that creates scarcity. on the other hand, the individual is individualistic, selfabsorbed in getting the surplus. the existence of similarities between individuals opens opportunities for seizure on one commodity and vice versa also opens the cooperation among the actors (chalid 2005: 41). there are also three models explanation can be used to analyse conflict in society. the first is the cultural explanation, the second is economical explanation, and the third is political explanation. the cultural perspective explains that conflicts in society are caused by cultural and ethnic differences. each cultural groups sees as a member or part of the same culture and makes a battle to gain cultural autonomy (stewart 2005 in chalid 2005). empowerment indicator the success of empowerment can be seen by their empowerment about: economic ability, access ability to the benefits of welfare, cultural ability and politeness. according schuler, hashemi, and riley in suharto (2005: 63-66) there are 8 indicators of empowerment: 1. freedom of mobility: the ability of individuals to go out of the house, place of worship, markets, medical facilities. this level of mobility is considered high if, each individual is able to go alone. 2. the ability to buy small commodities: the ability of individuals to buy their daily necessities and needs. 3. the ability to buy large commodities: the ability of individuals to buy secondary or tertiary goods. like wardrobe, tv, radio, newspapers, magazines, family clothes. 4. involved in making household decisions: able to make decisions individually or with a spouse about family decisions. 5. relative ability of dominance. 6. legal and political awareness: at least know the name of one of the employees of the district office and the village where they live. 99 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 7. involvement in campaigns and protests: one will be deemed empowered if he is involved in a campaign. 8. economic guarantee and contribution to the family, owning land, house or asset or savings. empowerment strategies the context of social empowerment work can be done through three levels or empowering settings: micro, mezzo and macro with the following explanation: 1. mikro aras: empowerment is done to individual clients through guidance, counseling, stress management, crisis intervention. 2. aras mezzo: empowerment is done by a group of clients. empowerment is done by using the group as a medium of intervention. educators or training, group dynamics is usually used as a strategy to increase awareness of knowledge, skills and attitudes of clients in order to have the ability to solve the problems faced. 3. macro level: this empowerment is often referred to as a large-system strategy, since the target of change is directed to a wider system environment (suharto 2005: 21). the development of local communities the development of local communities where the ongoing efforts to help local communities find their problems, needs, potentials and resources, develop development plans and assist development implementation over a period of time so that people are able to do it on their own (kartasasmita 1997: 25) the role of government in the society empowerment first, the role of government is very important in this framework there are some efforts to be done: 1. bureaucracy must understand the aspirations of the people and must be sensitive to the problems faced by the public. 2. bureaucracy should build people’s participation it means that the bureaycracy gives as much trust as possible to the public to improve themselves. the governments’ officials help to solve problems that cannot be solved by the public themselves. 3. the bureaucracy should prepare the society at the best, both knowledge and how to work, so that society empowerment efforts can be effective. it is part of social education efforts to enable people with independence. 4. the bureaucracy should open dialogue with the society of openness and this consultation is very necessary to raise awareness of the people 100 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang meinanda anggun maharani jils 3 (1) may 2018, 93-108 http://journal.unnes.ac.id/sju/index.php/jils and to apparatus to immediately help there is a mass that cannot be solved by the people themselves. 5. the bureaucracy must open the path of information and access that is needed by society that cannot be obtained by it. 6. bureaucracy must create regulatory instruments and market mechanism arrangements that favor the weak segment of society (wrihatnolo and dwijowijoto 2007: 29) second, society organizations outside the society itself, which has several important roles, as follows: 1. lsm as implementers of government programs (representing government), may assist (government consultants), but also assist communities in government programs. 2. there is also develop its own program (suharto 2005: 31) third, a society institution that grows from and within the society itself (local society organization). this institution can be semi/quasi formal such as lkmd, pkk / karang taruna. fourth, the cooperative which is a place of the people's economy that is specifically stated in the constitution as the most suitable business development for indonesia's economic democracy which is an effective vehicle for the role of government for society. fifth, families that commonly the poor people have limitations in developing themselves, the role of government here was very important. therefore, a companion is needed to guide the poor in an effort to improve their welfare. assistant duty accompanies the process of forming and organizing the society as a facilitator, communicator. the scope of guidance carried out on the companion includes efforts to improve the quality of human resources there are the quality of the members and family members also improvement of business capabilities of members (mark g. hanna and buddy robinson 1994, in harry hikmat 2001: 22). sixth, society empowerment must be reflected in the national development planning process, as a flow from the bottom up. the purpose of empowerment is to strengthen the power of society, especially weak families who have powerlessness, both because of internal and external conditions (kartasasmita 1997: 21). organizational theory in village society organizational theory is a theory that studies the performance in an organization. one study of organizational theory at this paper was discussing about how an organization performs the function and actualization the vision and mission of the organization. in addition, it is learned how an organization influences and is influenced by the people within it and also the work environment of the organization. according to lubis and husaini (1987) that the organizational theory is a collection of science that discusses the 101 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 cooperation mechanism of two or more people systematically to achieve the goals that have been determined. organizational theory is a theory to study cooperation in each individual. organizational theory includes classical organizational theory, neoclassical organization theory and modern organizational theory (gulick 1937: 79-87). classical theory classical theory sometimes called traditional theory, which contains conceptions of organization beginning from the eighteenth century (hundreds of nineteenth century) that defines organization as the structure of relationships, powers, goals, roles, activities, communication and other factors that occur when people work together. this theory, the organization is generally described by classical theorists as highly centralized and specialized tasks, and provides rigid structural mechanical clues that do not contain creativity. this theory also develops in three streams that are built on the same assumptions and have the same effect, namely: bureaucracy theory, administrative theory, scientific management (waldo 1948: 138-142). neoclassical organization theory neoclassical theory neoclassical is simply known as the theory / flow of human relations (the human relations movement). neoclassical theory developed on the basis of classical theory. the basic premise of this theory is to emphasize the importance of the psychological and social aspects of employees as individuals and as part of the working group, on the basis of this assumption that neoclassical theory defines "an organization" as a family / group of people with a common goal. the development of neoclassical theory began with the inspiration of experiments conducted in howthorne and from the writings of huga munsterberg. the division of labor, neoclasic theory has revealed the need as the following: 1. participations, which involves everyone in the decision-making process. 2. job expansion (job enlargement) as opposed to specialist politics. 3. bottom-up management that will enable juniors to participate in top management decisions (mckinney & howard 1998: 77) modern organization theory modern theory is characterized by the contingency movement pioneered by herbert simon, who argues that organizational theory needs to transcend superficial and oversimplified principles for a study of conditions under which competing principles can be applied. modern theory is sometimes referred to as the analysis system in the organization is the third major flow in the theory of organization and management. modern theory sees that all elements of the organization as a 102 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang meinanda anggun maharani jils 3 (1) may 2018, 93-108 http://journal.unnes.ac.id/sju/index.php/jils unity of interdependence, in which suggests that the organization is not a closed system associated with a stable environment, but the organization is an open system (simon 1946, in shafritz, j.m. & hyde, .c. (eds.) 2007: 124-137) the history of pringsari village semarang regency is a regency in central java, its capital is ungaran. the regency administrative borders are in the north bordering semarang city and demak regency. semarang regency is definitively determined based on law number 13 of 1950 on the establishment of regency within the province of central java. during the reign of the regent of iswarto (1969-1979), the capital of semarang regency was de facto transferred to ungaran. previously the central government was in the kenjengan area (semarang city). semarang regency has some sub-regency, one of them is pringapus sub-dictrict. pringapus is a village and developed into a sub-regency in semarang regency, central java. the establishment of pringapus sub-regency can be seen from the government regulation of the republic of indonesia number 48 of 1996 on the establishment of pringapus sub-regency in regency level ii semarang in regional province level i central java. the coverage of pringapus sub-regency is pringapus village; klepu village; derekan village; penawangan village; jatirunggo village; pringsari village; wonoyoso village; and candirejo village. 3 pringsari village, pringapus sub-regency, semarang regency cannot be separated from a hill known as gunung munggut. in the hill, there are three tombs that are respected by the surrounding villagers, they are simbah pringsari (villager head of pringsari village), prince purwokusuma (the son of benawa prince), sheikh basyaruddin (the theologian in pringsari village at that time). 4 the empowerment of bpd in optimizing village financial implementation based on law number 6 of 2014 concerning to village (village act) efforts to realize the implementation of democracy in the implementation of village government in order to be able to mobilize the society to participate in the development and administration of village administration, then any decisions taken should be based on deliberations to reach agreement. therefore, the village deliberation institution has a function of protecting customs, establishing village regulations with villager head, accommodating 3 see http://peta-jalan.com/kelurahandesa-pringsari-pringapus-kab-semarang/ 4 interview with ex-village secretary of pringsari village on august 16th 2017 http://peta-jalan.com/kelurahandesa-pringsari-pringapus-kab-semarang/ 103 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 and channeling villagers aspirations, and overseeing the implementation of village regulations and the villager head regulation, proposing the appointment and dismissal of the villager head. (sukriono, didik.2010,34) the bpd members are the representative of the villagers who are established by way of deliberation and agreement. the head of bpd are elected from and by members of bpd. the term of office of a bpd member is 6 (six) years and may be re-elected for 1 (one) subsequent term of office. terms and procedures for determination of members and head of bpd shall be regulated in a regional regulation that is guided by a government regulation. village fund allocation planning (add) 5 is done by capturing the aspirations and needs of the society through village consultation or village counseling. pringsari village deliberations were discussed on the planning of the village revenue and expenditure budget (apbdesa), as well as the deliberation of village development plans (musrembangdes) so as to generate the fund usage plan (rpd) 6 . the add planning in pringsari village is done by participatory planning through village consultation. the results showed that the low level of the society participation in implementing village meetings can be seen from the attendance level and the number of proposals by the society. the phenomenon of the field is not in accordance with the theory of empowerment which explains that the empowerment of society can be seen from the needs definition of the ability to determine the needs in harmony with aspirations and desires. society empowerment can also be seen from the definition of ideas and ideas namely the ability to express and contribute ideas in a forum discussion freely and without pressure (ife in suharto 2005: 59) add budgeting is done after the results of the village consultation are approved by all related parties in the village, so that a fund usage plan (rpd) can be developed for one year. the rpd includes the use of add pringsari village funds of rp. 1.345.388.000, for society empowerment and village government operations. the pringsari village rpd when examined is actually not in accordance with the provisions, in which funds for the operational of the village deliberation institution (bpd) are not included in the rpd operational of the village government. however, bpd operational funds are actually included in the rpd of society empowerment. the incident is in fact contradictory to regional regulation of semarang regency number 8 of 2006 on fund of village allocation. it was determined that the use of the add budget is 70% for society empowerment and 30% for operational costs of village governments and bpd. while the amount for society empowerment sourced from add only amounted to rp.35.260.000. 5 add, village fund allocation, alokasi dana desa, hereinafter called as add 6 rpd, fund usage plan, rencana penggunaan dana, hereinafter called as rpd 104 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang meinanda anggun maharani jils 3 (1) may 2018, 93-108 http://journal.unnes.ac.id/sju/index.php/jils in pringsari village, the management of add has been running well although in many areas the use of add is still not optimal. it can be seen from the add program that has been implemented since 2007, but has not shown the maximum results such as the high poverty level, the low education level, no improvement of village original income (pades), no village owned enterprise (bumdes) and also not optimal the society’s self-help. the empowerment model of bpd in optimizing village financial implementation perspective act number 6 of 2014 on village one of several supporting factors in the management of add is the society participation. the results of research and observations that have been done in pringsari village, that the level of public participation in the planning process in implementation in add is not so high. the results showed that the low level of society participation in the add planning in village consultation can be seen from the attendance level and the number of proposals by the society is quite low. the lack of society participation in the management of add in pringsari village is inconsistent with empowerment theory. village revenue and expenditure budget (apbdes) is a village regulation that contains sources of revenue and allocation of village expenditure within a period of one year. apb desa consists of village income, village expenditure and financing. the draft apbdesa is discussed in the village development planning meeting. villager head with bpd sets apbdesa annually with village regulation (chalid, pheni 2012: 76) the early results research indicate that the role of village organizations in preparing the apbdes some already run as expected, but still many problelms in the field. the dominant role is seen only to the villager head or the old law, especially in the preparation of apbdes. some society leaders who are members of the bpd still feel that they have not been fully involved in the preparation of the apbdes, but according to them, the preparation of apbdes is very important in the development of the village for the welfare of the villagers. there is a covert cooperation between the head of bpd with the old law to make apbdes with a process that is not participative. another problem in pringsari village, human resources (sdm) bpd members are not evenly distributed where there is a relatively small human resources, it is difficult to have a well role in bpd. this research would like to see the condition of pringsari village organization especially bpd that has not run properly. the following is a model of bpd empowerment desired by pringsari village society: 105 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 figure 1. the model of bpd empowerment desired by pringsari village society the role of society empowerment can be seen through participation in the stages of activity. the society was introduced to a society empowerment program that aims to increase society potential. communities are introduced to the various problems faced in their environment so as to generate a positive idea to overcome the problem. society participation is illustrated through the society deliberation as a form of understanding of the values and problems that society is facing (setiana 2002 in lucie setiana 2005: 5-6). at this stage the involvement of society leaders is very important because the authority as an intermediary between the owners of quality improvement programs with the implementation and society. this kind of a supervisory model is an empowerment option that can be resolved by deliberation. society empowerment is an effort to empower the society through the realization of potential capabilities possessed by the society (setiana 2002 in lucie setiana (2005: 9). based on the opinion, it can be concluded that empowerment is strived for the society independence both in terms of economic needs and other needs. empowerment can be interpreted as an effort to raise awareness of the 106 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang meinanda anggun maharani jils 3 (1) may 2018, 93-108 http://journal.unnes.ac.id/sju/index.php/jils potential possessed and strive to develop it so that people can achieve independence. society empowerment is an effort to increase the strength or power of the society by providing encouragement, chance, opportunities, and protection without regulating and controlling empowered society activities to develop their potential so that the society can improve their ability and selfactualization or participate through various activities (setiana 2002 in lucie setiana (2005: 12). conclusion finally, this paper concluded that the empowerment of bpd in optimizing the financial implementation of pringsari village has not been optimally empowered. the results of this study indicate the low level of society participation in implementing village meetings which can be seen from the attendance level and the number of proposals by the society so that the society does not know the amount of funding sources for society empowerment. the phenomenon of the field is not in accordance with the theory of empowerment which explains that the pringsari village society has not optimally received the openness of bpd in the planning of the program including the village financial planning, so it can be said that the empowerment of bpd to the society has not reached a condition that makes it possible to build openness in the forum. the model of pringsari village bpd empowerment found is apbdes planning process that has not been reached optimally because it is not involved in the society musdes (village meeting). the village development planning is prepared on a futures basis including: medium term development plan of the village hereinafter referred to as rpjmd for 5 (five) years period. the village development work plan, hereinafter referred to as rkp-desa, is a 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universitas negeri semarang meinanda anggun maharani jils 3 (1) may 2018, 93-108 http://journal.unnes.ac.id/sju/index.php/jils law adagium the power of the lawyer is in the uncertainty of the law jeremy bentham a legal philosopher 109 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 volume 3 issue 01 may 2018 jils 3 (1) 2018, pp. 109-130 issn (print) 2548-1584 issn (online) 2548-1592 implementation on transfer of undertaking protection of employment to outsourcing labors in semarang indonesia: a legal approach pratama herry herlambang pratama herry herlambang faculty of law, universitas negeri semarang center of employment and labor law clinics unnes  pratamaherryherlambang69@gmail.com table of contents introduction ………………………………………………………… 110 working relationship in the context of outsourcing labors in indonesia ……………………….… 114 legal protection to the outsourcing workers in indonesia and global context .…………………………..… 120 conclusion ……………………………………………………………. acknowledgement …..…………………………………………. 127 128 bibliography …………………………………………………………. 128 * thanks to all team of journal of indonesian legal studies, postgraduate program faculty of law, universitas negeri semarang, especially to all assistances. this paper was the result of my research and my working experience on center of employment and labors law clinics, faculty of law unnes. i also would like to thank to the dean of law faculty of universitas negeri semarang (dr. rodiyah, s.pd., s.h., m.si) and his staff who have given many opportunities to the author in implementing the college tridharma, and to drs. h sodako soepadiputra who is the author’s father and gives much input to the content corrects the use of words and terms. and to marchelina ernawati, s.e is the author's wife and is the source of inspiration from the author. 110 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang pratama herry herlambang jils 3 (1) may 2018, 109-130 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on december 2017 approved on february 2018 published on may 2018 assurance of proper and good job is one of indicators of the success of the state to run the constitution in accordance with the mandate of the constitution of the republic of indonesia. in the era of free trade and economic society, work is a problem that is less of a concern for the state because there is no comprehensive protection. even in the year 2003 was born a law on employment, at the beginning of the law establishment, a lot of optimism that of the indonesian population especially workers who have been unprotected related to the rights of workers. but over time, many problems arise in the community one of them is the guarantee of continued work for outsourcing workers, so a thorough legal review of employment protection guarantees is shifted to its work. keywords: transfer of undertaking protection of employment, outsourcing, labors, manpower act introduction the recent outsourcing words are increasingly being heard in the world of employment. recently thousands of workers through trade unions demonstrated on a large scale in which one of the demands of these workers was to abolish the outsourced system that was judged to have provided no guarantee and welfare for the workers. it is constitutionally justified in accordance with the purposes of trade unions, federations and confederations of trade unions namely providing protection, defense of rights and interests, and improving the welfare of workers and families. this demonstration becomes a problem that must be resolved immediately, if left unchecked will affect the investment climate in indonesia. it is even possible that some companies are threatened to close their businesses due to the unfulfilled problems with this workforce. even, khairani (2015) described that the presence of employment law is expected to answer the needs of industrial people, in fact that government found the difficulty in creating an accommodative employment law which can be accepted by all stakeholders how to cite (chicago manual style) herlambang, pratama herry. 2018. “implementation on transfer of undertaking protection of employment to outsourcing labors in semarang indonesia: a legal approach”, journal of indonesian legal studies (jils), 2018 3(1): 109-130. 111 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 involved especially the workers and employers in the process of forming the employment regulation. freeman (2015) stated that developing countries, like advanced countries, evince substantial differences in labor institutions that could impact economic outcomes and growth. what workers usually do is to demonstrate, a demonstration is an act by a worker or a union by shouting a yell or writing, posters to be seen by other workers. in addition there is also a walk with a poster around the company or sitting on the company page with a goal so that employers can cancel or change policies that have been issued, which by the workers considered harm to workers/labors but this activity does not stop the production. however, this is of course to be avoided considering the government of indonesia itself wishes to invite foreign investors to invest their capital in indonesia. in article 64 of law no. 13 of 2003 concerning manpower (manpower act), it is stated that: “the company may deliver part of the work to other companies through employment contracts or the provision of services made in writing”. the manpower act does not provide a definition of what is meant by outsourcing, but from this sense outsourcing or outsourcing can be interpreted as the transfer or transfer of some business process to a service provider or other party. basically if run well then the implementation of this outsourcing system can have a positive impact for both employers, workers, even for the government itself. here are the positive impacts of implementing this outsourcing system: (1) for the entrepreneur, can improve the company’s focus; better capability utilization; risk sharing in labor turn over; cost efficiency, (2) for people and workers, encouraging supporting economic activities in the community; reduce unemployment, prevent urbanization, and (3) for the government, encouraging national economic growth; and development of small, medium, and cooperative businesses. behind the positive impact, it turns out many problems related to this outsourcing workforce. here are some of the problems that arise as a result of this outsourced workforce: (1) unpredictability of employment status, (2) threat of termination of employment for the worker, (3) absence of career certainty, and (4) labor exploitation. article 59 of the manpower law states that “specific working agreement” may be made only for certain occupations which by type and nature or activity of the work shall be completed within a certain period of time, namely: 1. jobs that are completed or temporarily completed; 2. work which is expected to be completed in the not too distant and for a period of 3 (three) years. 3. seasonal work; or 4. jobs associated with new products, new activities, or additional products that are still in trial or exploration. in paragraph (2) it is stipulated that a certain time work agreement may not be held for a fixed occupation. article 65 paragraph (2) states that 112 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang pratama herry herlambang jils 3 (1) may 2018, 109-130 http://journal.unnes.ac.id/sju/index.php/jils work that may be submitted to another company shall meet the following conditions: 1. done separately from the main activities; 2. conducted by direct or indirect command from the employer; 3. it is a supporting activity of the company as a whole; and 4. does not impede the production process directly but in reality, some of these rules have not been felt enough to solve the various problems that exist. this issue has even been submitted to the constitutional court and as a result the constitutional court has issued the decision of the constitutional court no 27/puu-ix/2011 where in essence the decree states that: “the phrase of a specified employment agreement” in article 65 (7) and the phrase “employment agreement for a certain time” in article 66 paragraph (2) sub-paragraph b of the manpower law: 1. is contradictory to the 1945 constitution insofar as in the employment agreement it is not implied that there is a transfer of rights protection for workers whose work remains in place, in the event of a substitution of a company that executes part of the wholesale work of another company or service provider 2. have no binding legal force as long as the work agreement is not hinted that there is a transfer of rights protection for the worker whose work object still exists, although there is a change of company that executes part of the wholesale job from another company or service provider company it should be noted that the constitutional court’s decision does not deprive the applicable provisions of the manpower law regulating outsourcing, but only limiting the interests of these outsourced workers to be protected. this constitutional court decision has also been followed up by the ministry of manpower and transmigration by issuing letter number b.31 phijks/i/2012 concerning the implementation of constitutional court decision no. 27/puu-ix/2011. thus, the constitutional court has decided that every outsourced worker should get the same rights as a non-outsourced worker. in addition, the outsourcing company shall take into account the existing working period as a reference for determining wages and other rights in the relevant outsourcing company, including the occurrence of transfers to other recipient companies. in fact, sitompul and agus (2015) emphasized that the position of employers and workers is not the same, and juridically the position of labor is free, but economically the position of labor is not free especially for unskilled labor workers rely solely on the energy attached to him to carry out the work. if viewed in terms of rules, then the rule should have been able to protect the outsourcing workers and pkwt. but in its development, many parties still refused the application of outsourcing system and pkwt this. it should be realized that a law/rule that is made must be implemented and requires a supervisory system. therefore, the rules should be able to protect the interests of both parties of employers and workers. in addition to this, a 113 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 strong supervisory system is required so that the entrepreneurs of these services are not arbitrary and it is certain that the company has complied with the law and the established rules. with the current supervisory system that is still considered weak, many of these outsourcing service providers that do not comply with the law or rules that have been established, as a result the workers do not get adequate protection. governments should be firm against outsourcing service providers that are still unlawful. if necessary, the government is expected to revoke the company's license. in addition to this, the government is also expected to socialize its policies to both workers and employers so that they can understand the rights and obligations of each party. the participation of the public in overseeing these “rogue” companies is also urgently needed and the government is unlikely to be able to properly supervise the need for community participation to support this oversight process. finally, an independent complaints body is required where the community or workers who feel they are not entitled to the right can report to this agency for follow-up. outsourced workers or workers employed by workers’ placement service providers are legally protected. some important things, for example, the certainty of employment relationship, welfare pay has been regulated in law 13/2003 on manpower (manpower act). in the manpower act it is mentioned that private service providers must be legal entities and have written permission from the minister of labor or appointed officials. workers from a service provider company may not be used by a service user to work on the principal activities or activities directly related to the production process. workers from a service provider company may only work for supporting services or activities that are not directly related to the production process. the service provider must meet the following requirements: 1. there is a clear working relationship between workers and labor service provider companies. 2. working agreements applicable in the employment relationship as referred to in letter a may be in the form of a employment agreement for a certain time (pkwt) that meets the applicable requirements or an uncertain time employment agreement (pkwtt) made in writing and signed by both parties. 3. the protection of wages and welfare, the terms of employment, and the disputes arising are the responsibility of the enterprise service provider; and 4. agreement between company of service user of labor and other company acting as provider of labor services is made in writing. if there is a violation of these provisions then by law the status of employment relationship between labor that had occurred between the company providers of labor services and workers turned into a working relationship between workers and employer companies (companies where workers work). furthermore, the constitutional court has provided a 114 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang pratama herry herlambang jils 3 (1) may 2018, 109-130 http://journal.unnes.ac.id/sju/index.php/jils meaningful verdict relating to the protection of outsourced workers. considering the decision of the constitutional court no. 27/puu-ix/2011, the entrepreneur who will enter into agreement with the employment agreement for a certain time (pkwt) system shall stipulate the terms of guarantee of the transfer of right protection as referred to the constitutional court decision at the next winning bidder. in this way, outsourced workers have a guarantee of continuity of employment at the expiry of the charter agreement and the guarantee of wage receipts that are not lower than the previous company. responding of constitutional court decision (no mk. 27/puu-ix/2011), the ministry of manpower issued letter no. b.31/phijsk/i/2012 affirmed the existence of the constitutional court’s decision. working relationship in the context of outsourcing labors in indonesia working relationship: general principles working relationship is a legal relationship conducted by at least two legal subjects on a job. the legal subject that performs the employment relationship is the employer with the worker/labor. work relation is at the core of industrial relations. based on law no. 13 of 2003 article 1 point 15, is a working relationship is a relationship between employers and workers/labors based on employment agreements, which have elements of work, wages and orders. from the definition of working relationship (work agreement) has three elements, namely as follows: 1) there is work: in an employment agreement there must be a contracted work (the object of the covenant) and the work must be done solely by the worker/labor. in general, work is all actions that must be done by workers/labors for the interests of employers in accordance with the contents of the employment agreement. 2) there is wage: wages must be in every working relationship. wages are the right of workers to be received and expressed in cash or other forms in return for employers or employers to workers or labors who are established and paid under an agreement, agreement or law, including benefits for workers and her family for a job and/or service that has been done. thus, the bottom line of wages is the rewards of achievement paid by the employer to the worker/labor for the work done by the worker/labor. 3) there is a command: the command is the most typical element of the employment relationship, meaning that the work done by the worker / labor is under the orders of the employer. in practice, elements of this 115 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 order for example in companies that have many workers/labors, namely the existence of rules of conduct that must be obeyed by workers/labors. with the fulfillment of the three elements above, it is clear there is a good working relationship created in the form of written or verbal agreement. employment agreement on working relationship in the beginning, the work agreement is an agreement made by a prospective worker/labor with the entrepreneur in a mutually agreed term. the contents of the agreement include when workers begin to work and what to do, then the amount of wages to be received and other terms of work agreed upon. the employment relationship between the worker/labor and the employer consists of a permanent employment relationship with a nonpermanent employment relationship. in a permanent employment relationship, the employment agreement between the worker/labor and the employer is based on an uncertain time employment agreement (pkwtt, perjanjian kerja waktu tidak tertentu), whereas in a non-permanent employment relationship between the worker/labor and the employer is based on a employment agreement for a certain time (pkwt, perjanjian kerja waktu tertentu). a) employment agreement for a certain time (pkwt) employment agreement for a certain time (pkwt) is an agreement between worker/employer and employer to establish a working relationship within a certain time or to be temporary (article 1 point 1 of minister of manpower and transmigration decree no. kep 100/men/vi/2004 regarding provisions implementation of working agreement of certain time (hereinafter referred to as ministerial decree 100/2004) thus, the working agreement for a specified period of intention in the agreement has been established a period of time associated with the length of employment relationship between the worker/labor and the employer. understanding above in accordance with the opinion of prof. payaman simanjuntak that the pkwt is an employment agreement between the worker/labor and the employer to carry out the employment which is predicted to be completed within a relatively short period of time with a maximum period of two years and may be renewed only once for the longest equal to the time of the first employment agreement, the entire (period) of the agreement shall not exceed three years. pkwt which is made for a period of one year and can only be extended once with a maximum extension period of one year. if the pkwt is made for one and a half years then it can be extended for half a year, so that it is a maximum of three years. in law no. 13 of 2003 on manpower article 56-63, has been strictly regulated regarding the employment agreement for a certain period of time. the employment agreement for a certain period of time is based on the period of time or the completion of a particular job. thus it is clear that a pkwt 116 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang pratama herry herlambang jils 3 (1) may 2018, 109-130 http://journal.unnes.ac.id/sju/index.php/jils cannot be freely exercised by the parties, but must comply with the provisions stipulated in the manpower act. the pkwt is a conditional agreement, that is (among others) required that it be written and made in the indonesian language, with the threat of not being made in writing and not made in the indonesian language shall be declared as pkwtt (article 57 paragraph (2) invite employment). pkwt cannot be (required) a probation and if there is a probation in the pkwt, the clause is regarded as non-existent (null and void). therefore, if the termination of employment relationship (pkwt) is due for reason of probation, the employer shall be deemed to terminate the employment relationship before the expiration of the employment agreement. therefore, the employer may be liable to sanctions to pay compensation to the workers/labors at the wage of the worker/labor until the expiry of the term of the employment agreement. pkwt cannot be held for permanent employment, but pkwt may only be made for certain occupations by type and nature or activity of work will be completed within a certain time (article 59 paragraph (2) and (3) as follows: a. once-completed work (pack) or temporary work. b. jobs that are (time) of completion are estimated in the not too distant future and for a maximum of three years, especially for pkwt based on the completion of certain work packages. c. seasonal work. d. jobs associated with new products, new activities, or additional products (which are still in probation or exploration) the pkwt, which is based on a once-completed work package or a temporary job and a work that is (time) of completion is estimated in the nottoo-distant future is the pkwt which is based on the completion of certain work. in the pkwt which is based on the completion of the particular work, it is made only for a maximum of three years and in the agreement shall include the limit (package) of the work to the extent to which it is declared complete. if the particular contracted work can be completed earlier than promised, the pkwt is terminated or terminated by law. in other words, the agreement expires on its own accord upon completion of the work. pkwt for seasonal work is a job which in practice depends on a particular season or weather that can only be done for one type of work during a particular season. likewise for the work to be done to fulfill orders or specific targets are categorized as seasonal workers. but it can only be done for workers/labors who take additional work (article 5). employers who employ workers/labors on the basis of a seasonal pkwt, the execution is done by listing the names of workers/labors doing the work (article 6). pkwt for work relating to new products in new activities or additional products still in probation or explanation is further described in kepmen 100/2004 that the said pkwt can only be made for a maximum period of two years and may be renewed for one time extension in one year. 117 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 pkwts for work relating to new products, new activities, or supplemental products that are still within (time) of such experiments or explorations shall only be undertaken by workers/labors engaged in work outside of the activity or outside of the normal work of the work. in addition to several types of pkwt above, in everyday practice also known as a freelance work agreement. specific work that varies in time and volume of work and (pay) wages based on attendance, can be done through the daily work contract. implementation of a daily contract is done if the worker/labor works less than 21 days (work) in one month. however, if worker/labor continues to work more than 21 working days for three consecutive months or more, the status of the day-to-day work agreement is changed to pkwtt, the daily work contract is the exception (lex specialis) from the provisions (especially regarding) to the such period. employer who hire workers/labors on certain jobs on a daily basis, are required to enter into a written daily employment agreement. such work agreement may be collectively made by listing workers who do the work, with contractual materials, containing at least: the name/address of the company or employer, the employer’s name/address, type of work performed, the amount of wages and/or other benefits. the list of workers shall be submitted to the agency responsible for the manpower affairs of the district/municipality, no later than seven working days from employing the workers/labors. the pkwt expires upon the expiration of the period specified in the working agreement clause. in the event that either party terminates the employment relationship prematurely or before the specific work package specified in the employment agreement completes or terminates the employment relationship not because the worker/labor dies and not because of the termination of the employment agreement (pkwt) based on the decision of the pphi court or institution or not circumstances (certain) then the party terminating employment is required to pay the wage of the worker / labor until the expiry of the term of the employment agreement (article 162 manpower act). the minister of manpower and transmigration may stipulate (with the decree of the minister of manpower and transmigration) separately for specific business sectors and / or occupations, such as in the oil and gas sector regulated in a certain time minister’s regulation on an oil and natural gas mining company. b) uncertain time employment agreement (pkwtt) uncertain time employment agreement (pkwtt) is an employment agreement between the worker/labor and the employer to establish a permanent employment relationship. in this pkwtt can be indicated the existence of a trial period (maximum of three months). workers/labors employed on probation must be kept in compliance with the prevailing minimum wage standards. if pkwtt is made (meaning promised) 118 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang pratama herry herlambang jils 3 (1) may 2018, 109-130 http://journal.unnes.ac.id/sju/index.php/jils orally then the employer is obliged to make a letter of appointment (article 63 paragraph (1) of the manpower law). c) collective labor agreement (pkb, perjanjian kerja bersama) collective labor agreement (pkb) made by trade/labor unions or some trade unions/labor unions that have been registered with the agency responsible for manpower affairs with employers or some employers. in making a collective bargaining agreement there are several things that must be considered, among others, as follows: 1. in one company only a single collective agreement can be made applicable to all workers in the enterprise. 2. unions / labor unions entitled to represent workers in the negotiation of collective bargaining with employers shall be members of more than 50% of the total number of workers/labors in the enterprise concerned. 3. collective labor agreements shall not be contrary to the prevailing laws and regulations and if the contents of the collective agreement are contrary to the prevailing laws and regulations, such contradictory provisions shall be null and void and the applicable provisions of the law shall prevail. d) outsourcing contractor agreement (ppp, perjanjian pemborong pekerjaan) and service provider in law no. 13 of 2003 on manpower, there are two legal institutions in a newly recognized working relationship, namely outsourcing contractor and workers services provider. 1. outsourcing contractor agreement the manpower act, specifically concerning the chartering agreement is only stipulated in two articles, in particular articles 64 and 65. in the law there is no understanding of the contract of employment is an agreement between the contractor and the party that entitles the work which contains the rights and obligations of the party. in this contracting agreement there are three related legal subjects: the contractor, the contractor, and the worker performing the work. the employment contract is a contract of delivery of a portion of the worker's employment from the employer to the other company (the contracting receiving company). the main reason for the legal relationship in job procurement between employer and job/worker is the need of experts who can assist the implementation of work, on the contrary the implementation of work or charter providing services in accordance with the skills and skills required. implementation in carrying out their professional duties both contractor and employer must always provide the provisions of applicable legislation. the agreement is solely a press of purpose recognized by law. approval is of fundamental importance in the business world, and is the basis of most transactions and so far involves labor. 119 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 regarding the understanding of the agreement, subekti (2005) argued that a covenant is an event in which a person promises to another or where the two men promise to do something. this agreement publishes an engagement between the two people who made it. in its form, the agreement is a series of words containing promises or abilities that are spoken or written. to be able to carry out the delivery of work (chartering/outsourcing) must meet the requirements: (a) the ppp is made in writing. (b) the work that may be submitted to the contracting company shall meet the following requirements: 1) done separately from the main activities. 2) conducted by direct or indirect orders from employers. 3) it is a supporting activity of the company as a whole. 4) does not impede production process directly. (c) the contracting receiving company must be a legal entity. the employment relationship in the employment contract and the resulting legal consequences are as follows: 1) the employment relationship in the implementation of the work shall be stipulated in the written work agreement between the employer and the employed workers. 2) the employment relationship between the recipient company and the worker/labor employed may be based on an unspecified period of time (pkwtt) or a specified employment agreement (pkwt) if it meets the terms of a specified period of employment agreement. 3) employment protection and work conditions for workers/labors in the employment company shall be at least equal to the work protection and working conditions of the employer or in accordance with the provisions of the law. 4) in the event that the provisions concerning the terms of employment that may be submitted are not fulfilled then by law the status of employment of the worker/labor and the contracting company shall be turned into a worker/labor’s employment relationship with the employer. 5) in the case of employment relationships to employers, employment of workers/employers with employers may be based on certain time work agreements if they meet the requirements for a specified period of employment agreement. 2. worker services provider under the terms of providing this service the employer shall not use the worker/labor to carry out the principal activities or activities directly related to the production process and shall only be used to carry out the activities of supporting services or activities not directly related to the production process. the activities of supporting services or activities that are not directly related to the production process are those that relate outside the core business 120 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang pratama herry herlambang jils 3 (1) may 2018, 109-130 http://journal.unnes.ac.id/sju/index.php/jils of a company. these activities include cleaning service business, supporting service business in mining and petroleum, as well as business of transportation provider of worker/labor. to be a provider of workers/labors must meet the following requirements: (a) there is a working relationship between workers/labors and workers/ labors’ service companies. (b) a work agreement between a worker/labor and a worker/labor service provider is a specified period of employment agreement made in writing and signed by both parties. (c) the protection of wages and welfare, the terms of employment and disputes arising are the responsibility of the enterprise service provider. (d) agreement between enterprise of service user/worker and company of service provider of worker/labor can in writing. (e) a provider of workers/labors is a legal entity and has the permission of the agency responsible for the manpower field. further, if the employer/service provider does not comply with the provisions of a, b, c, d, e above by law, according sutedi (2009) the status of employment relationship between the worker/labor and the employer company (the user of the worker/labor), was failed. legal protection to the outsourcing workers in indonesia and global context after collapse of the berlin wall, the world became increasingly united in the absence of a power block that offset western powers. since then, it can be said that a new international system emerged. the new system has its own unique logic, various rules, pressures and incentives labeled as globalization. globalization is not only related to the economy but is related to other matters such as politics, law, environment and defense. the international system that replaced the cold war system after the fall of the berlin wall dominated all sectors of life (pakpahan, and damaihati 2010: 62). the impact of globalization has not only changed technology but changed lifestyles, rooted in the world of business affecting the labor-power world, and affecting industrial relations systems. since the emergence of globalization, the more open markets that make the domicile / capital to be flexible with the main characteristics of easy to move places, not only between cities, but between countries and even between continents. similarly, what happens in the system of labor relations and industrial relations systems. with the strengthening of globalization, the system of working relationships was made to be flexible. this was done to overcome labor surplus and then introduced a labor market flexibility system. according to guy standing (as cited by pakpahan and damaihati 2010: 65), the labor market is the process of selling one’s ability to work. as in 121 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 general there are sellers, buyers and goods sold. guy likes the buyer as an employer who has a job, the seller is the prospective worker and the goods sold are the person’s ability to work, unlike in the days of slavery where the goods traded were the person himself. after meeting the agreement between the seller and the buyer, then the transaction was passed into a work contract. in the labor market, free interaction between the labor users and the worker (employer or job seeker) is seen as a necessary condition for economic growth. the free labor user is looking for workforce in accordance with the rational needs of the users, while the free workforce selects the labor users in accordance with the rational needs of the workforce. the rational need of the user is determined by the type and production capacity required in accordance with the competition it faces in the commodity market. the rational need of the workforce is determined by how far the income provided by the users of labor can meet the necessities of life. in theory the flexible labor market is an institution where the users of workers and workers and job seekers meet at a certain level of wage where both parties have the discretion in deciding to work together without social and political barriers. this flexibility is a form of adaptation strategy of each of the changes that occur in the environment. in a flexible labor market system, flexibility and these needs are assumed to be mutually met. this is because the work user gets the convenience to recruit and lay off the workforce in accordance with their needs. regulatory barriers and state intervention to recruit and dismiss are reduced or even eliminated. forms of outsourcing and contractual relationships, according to pakpahan and damaihati (2010), are ways to realize a flexible labor market. such flexibility will create production efficiency and capital profit maximization. the flexibility of the job market refers to the speed of the job market adjusting fluctuations and changes in society, economy or production. this adjustment ability causes labor market institutions to achieve a sustainable balance determined by the intersection of the demand and supply curves. indrajit and djokopronoto (2006) emphasized that outsourcing is the delivery of corporate activities to third parties with a view to achieving professional and world-class job performance. dimanik (2006) underlined that outsourcing practice as stressed by inrdajit and djokopronoto, that outsourcing is the delegation of daily operations and management of a business process to an outsourcing company, through delegation then management is no longer done by the company but instead delegated to the outsourcing service company. outsourcing is another result of business process reengineering (bpr). bpr is a fundamental change done by a company in the process of management, not just make improvements. bpr is a new approach in management that aims to improve performance, which is very different from the old approach that is continuous improvement process. bprs are conducted to respond to global economic developments and rapid 122 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang pratama herry herlambang jils 3 (1) may 2018, 109-130 http://journal.unnes.ac.id/sju/index.php/jils technological developments resulting in a highly competitive global competition. whereas according to other literature, outsourcing as stated by khakim (2007) is an employment relationship in which workers or labors are employed in a company with a contract system, but the contract is not provided by an employer but by a labor steering company. the outsourcing system includes employment relationships based on shipping or lending agreements (uitzendverhouding). in this working relationship found three parties, namely the company provider or sender of labor, enterprise users of labor, and labor or workers. in article 1601b of the indonesian civil code, outsourcing is equated with a charter agreement so that the definition of outsourcing is an agreement whereby the contractor engages in the work of another party, the party who buys, by accepting a specified price. based on the above understanding it can be drawn an operational definition of outsourcing is a form of employment agreement between service providers, where the service user company asks the service provider company to provide the labor required to work in the company of service users by paying some money and wages or a fixed salary paid by the service provider company. indrajit (2006) explained that the pattern of outsourcing in general terms of employment is that there is some work then submitted to another company that has a legal entity, in which one company is not directly related to the worker but only to the channeling company or labor director. in the field of employment, outsourcing can be translated as the utilization of labor to produce or implement a job by a company, through a provider or employer. here there are two companies involved, a company that selects, trains, and employs a workforce that produces a particular product or service for another company's interests. thus, the second company does not have a direct working relationship with the workforce working on it. working relationships are only through employer-supplying companies. outsourcing is an alternative in doing the job yourself but outsourcing is not just casual contracting, but it goes far beyond that. under article 64 of manpower act it is stipulated that outsourcing shall be conducted by written agreement in two ways, namely employment contracting agreement and the provision of services of workers or labors. to be able to submit the execution of work through employment contracting agreement, must comply with the provisions in article 65 paragraph (2), namely: (1) done separately from the main activities; (2) conducted by direct or indirect orders from the employer; (3) it is a supporting activity of the company as a whole; and (4) does not impede the production process directly all of the above requirements, based on khakim (2007) are cumulative so that if one of the conditions is not met, then the job part cannot be outlined. the employer must be a legal entity. this provision is necessary 123 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 because many recipient companies are not responsible in fulfilling the obligations and rights of workers or labors as they should so that workers or workers become displaced. therefore, the legal entity becomes very important in order not to avoid the responsibility. in this case the employer, by law, turns to the employer. the terms of employment for workers or labors at employment companies are at least equal to that of workers or labors in employer companies. it is useful to have equal treatment of workers or labors in both the employer and the recipient company because essentially together to achieve the same goal, so that there is no longer the requirement of work, wage, and lower work protection. under article 66 of the manpower act, outsourcing is permissible for activities not directly related to the production process. in the explanation of article 66, the meaning of supporting activities or activities that are not directly related to the production process is a cure-related activity on a company. these activities include: cleaning service, food catering business, and the business of security personnel or security units, supporting services business in mining, and petroleum as well as the business of providing workers or labors. protection to the indonesian outsourcing worker under indonesian manpower act: problems and challenges outsourcing arrangements when viewed from the aspect of employment law is to provide legal certainty of the implementation of outsourcing and at the same time provide protection to workers/labors. thus, the assumption that the employment relationship on outsourcing was always used a certain time work agreement, so that the industrial relations blur is not true. implementation of work relation on outsourcing has been regulated clearly in article 65 paragraph (6) and (7) and article 66 paragraph (2) and (4) of law no. 13 of 2003 on manpower. indeed, in certain circumstances it is very difficult to define or indicate the types of work categorized as supporting. this can be happened because of differences in perceptions and sometimes backed by the interests represented in order to benefit from the condition. in addition, the varied forms of business management and several multinational corporations in this globalization era bring a new form of partnership, increasing the complexity of the confusion. therefore, through a ministerial decree as referred to in article 65 paragraph (5) of law no. 13 of 2003 on manpower is expected to accommodate or clarify and answer everything that caused the confusion by considering the input of all parties of the process of production of goods and services. nurachmad (2009) emphasized that outsourcing is a business partnership with the aim of obtaining mutual benefits, one form of implementation of outsourcing is through employment contracting agreement. in carrying out its activities, the contracting company has a working relationship with the worker, while the relationship between the user 124 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang pratama herry herlambang jils 3 (1) may 2018, 109-130 http://journal.unnes.ac.id/sju/index.php/jils company and the contracting company is only related to the work it is engaged in. broadly speaking there are two types of employees, namely contract and fixed employees. contract employees are based on article 59 of law number 13 of 2003 on manpower and decree of the minister of manpower and transmigration kep.100/men/vi/2004 on the implementation of certain working time (pkwt). certain working time agreements may only be made for certain occupations which by type and nature of work activities will be completed at a specified time. furthermore, concerning to the employment relationship, husni (2015) highlighted thay the employment relationship established in the delivery of part of the work to the outsourcing under the manpower act, whether through employment or worker or labor service providers is fixed under a written employment agreement between a work contractor or a service provider company or labors with workers employed. workers or labors working for a worker or labor services provider obtain the same rights in accordance with employment agreements, company rules or collective bargaining agreements on wage and welfare protection, terms of employment, and disputes arising with workers or other workers in the enterprise services of workers or labors. working agreements that may be made in oral and written form (article 51 (1) of law no.13 of 2003 on employment). normatively the written form assures the certainty of the rights and obligations of the parties, so that if there is a dispute it will greatly help the process of proof. but it is undeniable there are still many companies that do not or make a written agreement in writing due to the inability of human resources and because of custom, so on the basis of the trust to make an employment agreement orally. the term of the employment agreement may be made for a certain period of time for a work relationship with a limited period of validity, and indefinite periods for unrestricted employment periods or the completion of certain employment. agreements made for a specified period are commonly referred to as contractual or non-permanent employment agreements. his job status is a contract worker. while non-specified time-employment agreements are usually fixed employment agreements and employment status are permanent workers. trial period is the time or time to assess performance and sincerity, a worker’s skill. the probationary period is three months, during probation the employer may terminate the employment unilaterally (without permission from the competent authority) in this provision is not allowed to execute a probationary period for certain time workers because the work agreement is relatively short. obligations constitute a duty of responsibility of the parties, as to the obligations of the workers or labors as set forth in the indonesian civil code of article 1063, article 1603a, article 1603b and article 1063c which in essence are as follows: (1) workers or labors do the work, doing the work is the main task of a worker to do alone, though with the permission of the employer can be represented. for that reason given the work done by workers who are very 125 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 personal nature because it is related to his expertise, then under the provisions of legislation if the worker dies, then the employment relationship ends by itself (layoff by law). (2) workers or labors shall comply with the rules and instructions of employers, in the conduct of work of workers or labors shall comply with the instructions given by employers. rules that must be obeyed by workers or labors should be set forth in company regulations so that it becomes clear the scope of the instructions. (3) liability for damages and fines, if workers or workers commit acts that adversely affect the company either by intent or negligence, in accordance with the legal principles of workers or labors shall be compensated and fine. while the obligations of employer in essence are as follows: (1) the obligation to pay wages, in employment relations the primary obligation for employers is to pay wages to their workers in a timely manner. this wage provision has also undergone a change in regulation towards public law. this can be seen from government intervention in determining the lowest wage to be paid by employers known as minimum wage, as well as wage setting in government regulation no. 78 of 2015 on wage protection. government intervention in determining the size of this wage is important in order to keep the wages received by the workers too low so that they cannot meet the living needs of the workers even with the smallest things. (2) the obligation to provide rest or leave, the employer is obliged to give the workers annual breaks regularly. the right to rest is important to eliminate the worker's saturation in doing the work. thus it is expected that the passion of work will remain stable. annual leave of 12 working days. in addition, workers are also entitled to a sabbatical for 2 months after continuous work for 6 years in a company (article 79 of law number 13 year 2003 on manpower) (3) obligation to take care and treatment, employers must take care or treatment for workers who live in the employer's house (article 1602 indonesian civil code). in the development of labor law, this obligation is not limited only to workers residing in the employer's home, but also to workers who do not reside in the employer's home. protection for sick workers, accidents, deaths has been guaranteed through jamsostek protection as stipulated in act number 3 of 1992 on jamsostek. the obligation to provide a certificate, this obligation is based on the provisions of article 1602a of the indonesian civil code which requires that an employer or employer is obliged to provide a date and signature certificate. in the certificate is explained about the nature of work done, duration of employment relationship (employment). the certificate is also given although the initiation of termination of employment comes from 126 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang pratama herry herlambang jils 3 (1) may 2018, 109-130 http://journal.unnes.ac.id/sju/index.php/jils the workers. the certificate is very important as the provision of workers in finding new jobs, so he was treated according to his experience. workers are part of the indonesian people who need to be protected. the principle of legal protection for the people of indonesia is the principle of recognition and protection of the people and the dignity of human beings originating from pancasila and the principles of the rule of law based on pancasila. legal protection for workers is based on the provisions of article 27 paragraphs (1) and (2), article 28d paragraph (1) and (2), of the 1945 constitution. article 27 (1) of the 1945 constitution namely all citizens simultaneously their positions in law and government, and must uphold the law and government with no exception. article 27 paragraph (2) of the 1945 constitution is that every citizen shall have the right to work and a decent living for humanity. in addition, the guarantee for the protection of work shall also be contained in the provisions of article 28 d paragraph (11) of the 1945 constitution, that is, everyone is entitled to the recognition, guarantee, protection and legal certainty of justice and equal treatment before the law. article 28 d paragraph (2) of the 1945 constitution is that every person shall have the right to work and receive fair and reasonable remuneration and treatment in the employment relationship. the provision indicates that in indonesia the right to work has obtained an important place and protected by the 1945 constitution. legal protection for the workforce is a manifestation of efforts to promote the general welfare, educate the life of the nation. however, the basic philosophy set by the employment act lawmakers is inconsistent. this is seen in the consideration d of manpower act, namely the protection of labor is intended to guarantee the basic rights of workers or labors and to guarantee equality, opportunity, and treatment without discrimination on any ground to realize the welfare of workers or labors and their families while maintaining the progress of the business world. the problem of outsourcing is quite varied. this happens because the use of outsourcing in the business world in indonesia is now increasingly being practiced and has become a requirement that cannot be postponed by the business actors, while the existing regulations have not been sufficient to regulate the outsourcing. the speed of the business (company) in responding to market demands can determine the victory or defeat in winning the market competition. that is why companies are more concerned with the efficiency and effectiveness of the company. one way is to submit some work to other parties through outsourcing. through the use of outsourcing, companies can focus more on the main activities, companies, so that companies become more competitive. outsourcing practices are more profitable for the company, but more harm to the workforce, because the employment relationship is always in the form of non-permanent or contract (pkwt), wages are more redah, social security if only limited to a minimum, the absence of job security, and no guarantee career development. in these circumstances, the implementation 127 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 of outsourcing will hurt the workforce. recognizing the importance of the workforce for the company, the world of outsourcing both the employment and the employment services, the company is required to guarantee the protection of the rights of workers or labors. the protection begins with the obligation that the company must be a legal entity. the minimum wage setting policy within the wage protection framework still encounters many obstacles as a result of the uniformity of wages, either regionally or regionally or regionally, or nationally. in establishing wage policy it is necessary to be systematically pursued in terms of macro in tune with employment development efforts, particularly the expansion of employment opportunities, increasing production, and improving the living standards of workers or workers in accordance with their minimum living needs. law no.13 of 2003 on manpower article 88 paragraph 1 affirmed that every worker/labor is entitled to income that fulfills a decent living for humanity. in the sense that the amount of remuneration received by the worker/labor from his/her employment is able to adequately meet the needs of the worker/labor and his/her family, among other things includes clothing, food, shelter, education, health, recreation, and old age pension in order to realize income that fulfills a decent living for humanity, a wage policy that protects workers. however, such provisions will still be governed by a government regulation concerning wage protection. the right to receive a wage for a worker, according to sutedi (2009) arises during an employment relationship between a worker and an employer, and ends when the employment relationship is terminated. employers in determining wages should not discriminate between male and female workers for work of equal value. wages are not paid to workers if workers do not do work. this provision applies to all classes of workers, except where the worker concerned does not do the work due to illness, marriage, religious worship, and so on. conclusion there are several things that can be taken that there are several things that must be met for the transfer of undertaking protection of employment. there are three important steps that a company must perform outsourced in order for the event to succeed. the stages are the planning, implementation and evaluation of the implementation by outsourced companies: (1) planning, (2) implementing, and (3) evaluation. on the planning step, both vendoor and principle to outsourcing workers begin to solidify the vision and mission to be achieved. for the vendoor, the outsourcing owner tries to be the best company for the principle and does not violate the laws and regulations as vendoor from the beginning of work until the employment agreement expires. meanwhile, 128 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang pratama herry herlambang jils 3 (1) may 2018, 109-130 http://journal.unnes.ac.id/sju/index.php/jils for the principle is a process to determine the reasons for the purpose of a job is diverted to vendoor companies, so that the outsourcing of the work is not the only way to escape from the responsibility of the company towards to hire its employees. as for the employees, this is a stage that needs to be matured so that the initial intentions and planning can be done well that ultimately the purpose of registering jobs in vendoor companies can be achieved. at the implementation step, is the most crucial in the course of the outsourcing of work carried out by the principle to vendoor and will be implemented by the workers. this happens because it contains the stages performed in the outsourcing of work. acknowledgement the author would like to thank to the dean of law faculty of universitas negeri semarang (dr. rodiyah, s.pd., s.h., m.si) and his staff who have given many opportunities to the author in implementing the college tridharma, and to drs. h sodako soepadiputra who is the author’s father and gives much input to the content corrects the use of words and terms. and to marchelina ernawati, s.e is the author's wife and is the source of inspiration from the author. bibliography dimanik, sehat. outsourcing dan perjanjian kerja menurut uu no. 13 tahun 2003 tentang ketenagakerjaan. jakarta: dss publishing, 2006. freeman, richard b. “labor regulations, unions, and social protection in developing countries: market distortions or efficient institutions?” handbook of development economics, 2010 5(70): 4661-4695. husni, lalu. pengantar hukum ketenagakerjaan edisi revisi. jakarta: rajagrafindo persada, 2015. indrajit, richardus eko and djokopranoto, richardus. proses bisnis outsourcing. jakarta: gramedia, 2006. khairani. “realizing legal protection for outsourcing workers through employment setting synchronization.” jurnal dinamika hukum, 2015 15(3): 259-265. khakim, abdul. pengantar hukum ketenagakerjaan indonesia. bandung: citra aditya bakti, 2007. nurachmad, much. tanya jawab seputar hak-hak tenaga kerja kontrak outsourcing. jakarta: visimedia, 2009. 129 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 pakpahan, muchtar and damaihati p., ruth. konflik kepentingan outsourcing dan kontrak dalam uu no. 13 tahun 2003. jakarta: bumi intitama sejahtera, 2010. rusli, hardijan. hukum ketenagakerjaan berdasarkan uu no. 13 tahun 2003 tentang ketenagakerjaan dan peraturan terkait lainnya. bogor: ghalia indonesia, 2011. sitompul, krisman hara tua and thambun anyan agus. “perlindungan hukum terhadap pekerja dalam pelaksanaan pemborongan pekerjaan pada pt sari bumi kusuma unit industri kumpai.” jurnal nestor magister hukum, 2015 4(4): 130-155. sutedi, andrian. hukum perburuhan. jakarta: sinar grafika, 2009. soedarjadi. hukum ketenagakerjaan di indonesia. yogyakarta: pustaka yustitia, 2008. soekanto, soerjono and mamuji, sri. penelitian hukum normatif: suatu tinjauan singkat. jakarta: rajagrafindo persada, 2004. soemitro, ronny hanitijo. metodelogi penelitian hukum dan jurimetri. jakarta: ghalia indonesia, 1990. yassar, iftida. outsourcing tidak akan pernah bisa dihapus. jakarta: pelita fikir indonesia, 2012. laws and regulations the constitution of 1945, undang-undang dasar negara republik indonesia tahun 1945. indonesian civil code, kita undang-undang hukum perdata law no. 13 of 2003 concerning manpower (manpower act) constitutional court decision (no mk. 27/puu-ix/2011) the ministry of manpower decision letter (no b.31/phijsk/i/2012) 130 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang pratama herry herlambang jils 3 (1) may 2018, 109-130 http://journal.unnes.ac.id/sju/index.php/jils law adagium the end of law is not to abolish or restrain, but to preserve and enlarge freedom. for in all the states of created beings capable of law, where there is no law, there is no freedom. jhon locke 131 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 volume 3 issue 01 may 2018 jils 3 (1) 2018, pp. 131-146 issn (print) 2548-1584 issn (online) 2548-1592 implementation of countermeasures effort of illegal fishing in indonesia (case study on sinking the fv viking vessel) muhammad insan tarigan muhammad insan tarigan department of international law, faculty of law, universitas surabaya (ubaya)  insantarigan02@gmail.com table of contents introduction ………………………………………………………… 132 the impacts of illegal fishing in indonesia ……….… 135 the relevance of international laws with the sinking destruction policy in indonesia ……….……... 137 analysis of the drowning of viking fv vessel by the government of indonesia ……………………………… conclusion …………………………………………………………… 142 144 bibliography …………………………………………………………. 144 132 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad insan tarigan jils 3 (1) may 2018, 131-146 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on november 2017 approved on february 2018 published on may 2018 geographically almost 70% of indonesian territory consists of waters that potentially storing an amazing wealth of the sea, and the biggest is on fisheries sector. illegal fishing that was done by foreign vessels in indonesian territorial waters was estimated giving loss to indonesia around 1 million ton/year (rp 30 trillion/year). indonesian government has decided to take policy in doing sinking illegal fishing vessels for the actors of illegal fishing in indonesia. how is the relevance of international law with the law on sinking foreign vessels in indonesia and the implementation on the regulation of sinking fv viking vessel. the research on this paper is normative legal research, and research method library research also documenter not only to the primary sources but also to secondary sources that related with the problem on this research. after the identification and classification process, the problem will be normatively analyzed using the data. illegal fishing is not only affecting the economy aspect but also affecting the other aspects, such as state sovereignty, social, as well as environmental of the sea. the law of sinking illegal fishing vessels is not contradicting and still considered relevant with international law, either unclos 1982, ipoa-iuu fishing or ccrf. an fv viking vessel was caught by tni al working with norwegian interpol at indonesian zee. fv viking vessel was entering to indonesian territory without doing the obligation to reporting their identity and the navigation data. moreover, this vessel does not have the license on fishing. the sinking vessel is better not using the bombing method but using the method of burning the vessels with oil fuels thus it will be more cost saving. sinking illegal fishing vessels is supposed to be done after there is a judgment from the court. keywords: illegal fishing, sinking vessels, fv viking introduction indonesia is the largest archipelagic country in the world, with 2/3 of its territory being a marine area, with approximately 17,504 islands and 81,000 km long coastline (ariadno 2007: 129). indonesia's marine width reaches 5.8 million km 2 , with the length of indonesia's coastline reaching 95,181 km and how to cite (chicago manual style) tarigan, muhammad insan. “implementation of countermeasures effort of illegal fishing in indonesia (case study on sinking fv viking vessel)”, journal of indonesian legal studies (jils), 2018 3(1): 131-146 133 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 5.8 million km2 of water area, and has been claimed by the world has 17,500 islands, not optimally utilized, nor shallow oceans covering an area of 24 million hectares and a bay of 4.1 million hectares is still wasted (sambo 2010: 1). the vast territory of indonesian waters certainly has the potential of marine resources that are so large, both biological and non-biological resources are stored from inland water to exclusive economic zone (zee). as an archipelagic country, indonesia is one of the most beneficiaries of the united nations convention on law of the sea (unclos) or the un convention on the law of the sea of 1982. unclos 1982 gave birth to eight jurisdictions of the sea: internal waters; archipelagic waters including the straits used for international shipping; territorial waters; contingous waters; exclusive economic zone; the continental shelf; high seas; and international sea-bed area. geographically, almost 70 percent (70 percent) of indonesia is a very potential water reserve of marine wealth is extraordinary, ranging from potential fisheries, marine industry, marine services, transportation, to marine tourism. the potential of sustainable fish resources (sdi) reaches 6,520,100 tons per year. consists of 50,875 km 2 of coral reefs or approximately (14 to) 18% of the world's total coral reefs, with hard coral species reaching 590 species. has a mangrove area of not less than 4.25 million ha and has 89 species of plants. of the 71 species of true mangrove in the world, indonesia has about 43 types of true mangroves. indonesia is the country with the largest mangrove area (19%) and the highest total mangrove species (61%) in the world. it has a total area of 30,000 sq. km of sea-grasses and of about 60 species of known sea-grasses in the world, indonesia has about 13 species. it has about 32 species of 87 species of marine mammals from whales, dolphins and dugongs of the world, including blue whales (balaenopteramusculus ) currently endangered under the iucn redlist category. it has 157 of 596 species of sharks and rays of the world, including sharks known as the world's largest marine species, the whale shark (rhicodontypus) and two charismatic rays, the manta oceanic pari (mantabirostris) and pari manta karang (mantaalfredi). it has 6 of 7 species of turtles in the world's oceans, including leatherback turtles (derm ochelyscoriacea) known as oceanic sea reptile species, this information excerpted from the ministry of marine affairs and fisheries of the republic of indonesia (jaelani 2014). he potential of biological resources and non-biological resources that exist at sea at its greatest potential is fishery. in addition to the greatest resource potential, fisheries as an object of exploitation and exploration are the most significant improvements. but in addition to potential, sea fishery exploration activities are also followed by fishery crime activities that are very detrimental to indonesia (sunyowati 2014). according to the food and agriculture organization (fao) 1 , fishing crime activities are called illegal, unregulated, and unreported fishing (iuu-fishing), meaning that fishing is 1 fao-iuu fishing on code of conduct for responsible fisheries, 1995 134 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad insan tarigan jils 3 (1) may 2018, 131-146 http://journal.unnes.ac.id/sju/index.php/jils illegal, unreported and incompatible with defined rules. indonesian fishery resources recognized as one of the economic incomes for the nation is disturbed by the existence of illegal fishing. based on data from the ministry of marine fisheries 3 there are 14 fishing ground zones in the world, currently only 2 potential zones, and one of them is in indonesian waters (sihotang 2006: 58). indonesia's potential and iuu fishing potential zones are the malacca sea, the java sea, the arafuru sea, the timor sea, the banda sea and the waters around maluku and papua. the illegal fishing action by sunyowati (2014) is an act of forgery of documents, winning fish with a net forbidden, using explosive bombings, using unlicensed foreign crew. considering this condition, iuu fishing can weaken the management of fishery resources in indonesian waters and cause some fishery resources in some fisheries management areas (wpp) of indonesia to over fishing. the problems that make illegal fishing difficult to stop, according to amir (2013) are legal uncertainty, different legal understanding, inconsistency, discrimination against the execution of punishment, conspiracy between the parties concerned. the theft of fish by foreign ships from the indonesian marine area is estimated to cost the country 1 million tons per year (rp 30 trillion per year). the ships come from various countries, such as thailand, vietnam, malaysia, china, philippines, taiwan and south korea. the fao stated that the current stock of fish resources in the world which still allows for increased capture is only 20 percent, while 55 percent are in full utilization condition and the remaining 25 percent are in danger of sustainability (sunyowati 2014: 3). illegal fishing is not only detrimental to the economy with the value of trillions of rupiah lost, but also destroyed the fishermen‟s economy. it also has a political impact on inter-state relations side by side, violating the sovereignty of the state and threats to the preservation of marine biological resources. acts that violate state sovereignty and threats to the preservation of marine biological resources or activities related to fisheries are acts that harm the peace, order or security of a country. this act has been regulated in the united nations convention on the law of the sea 1982 (parthiana 2014: 107-108). the extent of indonesia's marine territory is increasingly recognized that the sea in addition to functioning as a liaison area with one another region also contains the potential of natural resources are very abundant. this then makes indonesia more extra in maintaining its sovereignty in the waters, so foreign ships that intend to steal information and marine resources can be overcome (lestari 2012: 63). the actions of foreign fishing vessels that enter the territorial waters of indonesia without permits and exploit the natural wealth in it would violate the sovereignty of the state of indonesia. for that there must be firm or decisive law enforcement in the form of catching foreign fishermen and their ships to be processed legally. the capture of foreign fishing vessels may be justified if it has fulfilled the evidence that the fishing 135 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 vessel is conducting illegal fishing. maintaining natural resources in the territory of sovereignty in the territorial sea and sovereign rights is the authority of a country to a certain region in which the implementation of indonesia must be subject to the laws of the international community (murdiansyah 2009: 54). illegal fishing actions that often occur in the territorial waters of indonesia make the indonesian government cannot stay silent and have to find a solution to these harmful actions. one of the solutions taken by the indonesian government is the act of sinking the ship by blasting. the aim of the sinking of foreign fishing vessels is to provide a deterrent effect and demonstrate the firmness of the government's stance in bringing about sustainable and responsible fisheries. on 26 february 2016 the fv viking ship was captured in the exclusive economic zone (zee) 12.7 miles from tanjung uban, bintan, riau province. this ship entered into indonesia without carrying out the reporting obligations of identity and shipping data as regulated in law no. 17 of 2008 on shipping (fajriah 2016). in addition, in fact it was argued that the viking fv ship size of 1.322 gt is a ship with no nationality that has long been conducting illegal fishing activities in various parts of the world. by the south coast fisheries management organization (rfmo) called antarctic marine living resources (ccamlr), the ship is categorized as a ship perpetrator of illegal fishing. however, the steps taken by the jokowi-jk government are considered quite controversial by carrying out the actions of burning, bombing, shooting, and drowning of foreign fishing vessels that violate indonesian sovereignty. if the action is considered shock therapy, it is only temporary. in a long time must be done in accordance with international law. so this article will focus on the relevance of international law with the act of sinking foreign ship perpetrators of illegal fishing in indonesia, as well as see the implementation of ship drowning arrangements against fv viking as the perpetrators of illegal fishing in indonesia. the impacts of illegal fishing in indonesia illegal practice, unreported and unregulated fishing (iuu fishing) is an organized and transnational criminal act that has clearly caused serious damage to indonesia and other countries in the asia pacific region. in addition to economic, social and ecological disadvantages, this practice is an act that undermines the sovereignty of a nation's territory. even war against iuu fishing was discussed together in october 2010 and indonesia with 21 countries joined in asia-pacific economic development (apec) has agreed to more vigorous in fighting and overcoming illegal fishing. the agreement is 136 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad insan tarigan jils 3 (1) may 2018, 131-146 http://journal.unnes.ac.id/sju/index.php/jils included in the paracas declaration which is the result of the apec marine ministers meeting in paracas, peru. 2 the impact of illegal fishing almost touches all aspects of social life such as environment, social, economic, and violation of state sovereignty. so it makes it a serious challenge for the coastal countries. illegal fishing action occurs in almost all parts of the world. illegal fishing is a well-organized fishery crime, starting from national to international level. today, illegal fishing has changed the way it operates when compared to how it operated in the mid-1990s. the illegal fishing act has become a highly sophisticated form of transnational organized crime, with features such as modern ship movement control and modern equipment, including a tank to refuel at sea (wasundari 2015: 31-32). illegal fishing action has not been a transnational issue formulated by the united nations (un). but de facto, this issue has become the concern of world and regional organizations as one of the organized crimes that harm the state and threaten the sustainability of fishery resources. therefore a special arrangement is needed in order to tackle this illegal act. one of the international organizations governing this issue is the food and agriculture organization (fao). the explosion of fish theft is explicitly the director general of food and agricultural organization (fao) jose graziano da silva, said illegal fishing is one of the most difficult issues to be addressed as well as the attention of many countries in the world that rely on the fishery sector. “the most difficult thing we do is identify their boats and find ways to get them to justice. we must make them accountable, especially when they go to sea in the international sea territories.” 3 da silva emphasized that illegal fishing is one of the concerns of fao. for this purpose, the un agency has cooperated with several countries, including indonesia in handling illegal fishing. one of them is in the agreement signed today, where fao will provide support in the form of training and capacity building. in 2013, kkp and fao will conduct a number of workshops related to fishing and fishermen welfare. in addition there will also be a 3-year program that began in 2013, namely technical cooperation program on development of preventive animal protection plan and enhancing emergency response capacity to shrimp disease outbreak in indonesia, and the ctf‟s partnership with fao has been going on since 2007. 4 fao has placed and formulated illegal fishing actions into the provisions of the code of conduct for responsible fisheries (code of conduct). this provision concerns aspects of ecosystem sustainability and fishery resources contained therein. understanding illegal fishing refers to the 2 statistic and information data center, fao, illegal fishing menjadi masalah banyak negara, ministry of marine affairs and fisheries, jakarta, 2013 3 ibid. 4 ibid. 137 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 understanding issued by the international plan of action (ipoa) 2001 initiated by the food agriculture organization (fao) in the context of implementing the code of conduct for responsible fisheries (ccrf). understanding illegal fishing is described as follows: 5 1. any fishing activity carried out by a particular country or a foreign ship in waters which is not its jurisdiction without the consent of a country having jurisdiction or fishing activities is contrary to the laws and regulations of that country. 2. fishing activities undertaken by fishing vessels with flags of one of the countries joined as members of the regional fisheries management organization (rfmo) but the operation of their vessels is contrary to the conservation and fisheries management measures that have been adopted by rfmo. rfmo countries are required to follow the established rules or other rules relating to international law. 3. fishing activities that are contrary to the laws of a country or international provisions, including those established by the rfmo member countries. although ipoa-fao fishing has given limits to the notion of illegal fishing, in a simpler and operational sense, illegal fishing can be interpreted as illegal fishing activities. illegal fishing not only violates international law, but national law is also violated. so in tackling illegal fishing practices should also be based on the legal system. the relevance of international laws with the sinking destruction policy in indonesia efforts that have been made by the indonesian government to fight illegal fishing practices, such as cooperation with the fao is still not enough to provide a deterrent effect on the perpetrators of illegal fishing. the government through the ministry of marine affairs and fisheries (kkp) is still working and not at all retroactively to keep fighting crime in the sea of indonesia. even during the year 2012 and then, kkp has managed to capture and examine as many as 4226 fishing vessels. of these, the vessel captured a total of 112 fishing vessels allegedly committing an offense, 70 were foreign fishing vessels and 42 indonesian fishing boats. even during the past 8 years, the ctf has successfully examined 20,064 fishing vessels. of that amount which has been followed up to the legal process reaches 714 vessels, while, fishing boats from indonesia who allegedly conducted iuu fishing for 563 5 section ii international plan of action to prevent, deter and eliminate illegal, unreported, and unregulated fishing, food and agriculture organization of the united nations, rome, 2001. 138 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad insan tarigan jils 3 (1) may 2018, 131-146 http://journal.unnes.ac.id/sju/index.php/jils ships. the successful operation of this ctf is proof that the activity of fish theft by foreign fishing vessels in indonesian waters is still quite common. 6 during the reign of president joko widodo, efforts to combat illegal fishing became a new phase. the government of indonesia's policy of president jokowi to expressly define foreign vessels that have stolen fish in indonesian waters reaped various reactions during recent times. this policy is supported by some circles as a form of assertiveness of the government of indonesia in maintaining the sovereignty of the nation. for example, foreign minister retno marsudi said that this decisive action should be done as a state effort to enforce law enforcement without being purchased, further stating that this action is a starting point for indonesia to be respected by other nations. it is also supported by the minister of marine affairs and fisheries susi pudjiastuti who emphasized that the sovereignty of the state is a thing that must be maintained in any way that is needed (setyawan 2011). the special act of drowning foreign vessels by indonesia in recent times is actually not new because the rules concerning such actions have been listed since 2009 in the law on fisheries (act of the republic of indonesia number 45 year 2009 on fisheries, 2009) where article 69 paragraph 4 of the act states that: in performing the functions referred to in paragraph (1) the fishery investigator and/or supervisor may take special action in the form of burning and/or sinking of a foreign flagged fishing vessel on the basis of sufficient initial evidence. the authority for special action of sinking of the vessel is held by a supervisory vessel, as set forth in article 69 paragraph (1), which functions to exercise supervision and law enforcement in the field of fishery in the territory of fisheries management of the republic of indonesia. specific conduct of sinking of foreign ships may be carried out if there is sufficient preliminary evidence, meaning that the initial evidence to suspect a criminal offense in the field of fisheries by a foreign-flagged fishing vessel, for example a foreign flag fishing vessel does not have sipi and sikpi, and clearly captures and / or transporting fish when entering the fishery management area of the republic of indonesia. this provision indicates that such special measures cannot be carried out arbitrarily, but only when a fishery investigator and/or supervisor convinced that the foreign flag vessel is actually committing a criminal offense in the field of fisheries. the united nations convention on the law of the sea 1982 (unclos 1982) does not govern illegal, unreported and unregulated fishing (iuu fishing), but regulates general law enforcement in the territorial sea and zee of a country. if a violation of the coastal state legislation takes place in the territorial sea or inland waters of a country, it includes a violation 6 statistic and information data center, fao, op.cit. 139 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 of the sovereignty granted by article 2 of unclos 1982. the coastal state may enforce its law and even its criminal law against such vessels only if the offense has an impact for the coastal state or disturbing the security of the coastal state. however, if the elements mentioned in article 27 paragraph 1 of unclos 1982 are not met, the coastal state cannot apply its criminal jurisdiction to the vessel. the elements contained in article 27 paragraph (1) unclos 1982 stated that, criminal jurisdiction of the coastal state cannot be exercised aboard a foreign ship crossing the territorial sea to arrest anyone or to conduct an investigation relating to any offense committed on board during such traffic, except in the case of the following: a) if the consequences of the crime are felt in the coastal state; b) if the offense belongs to the type that interferes with the peace of the state or of maritime territorial order; c) if it has been requested of local ruler assistance by the ship's captain by a diplomatic representative or consular official of the flag state; or d) if such action is necessary to combat illicit drug trafficking or psychotropic substances based on the general provisions of law no. 45 of 2009 concerning fisheries that the existence of excessive fishing phenomenon, fish theft, and other illegal fishing activities that not only cause harm to the state, but also threaten the interests of fishermen and fish-farmers, industry climate, and national fishery business. the problem must be solved seriously, so law enforcement in fishery becomes very important and strategic in order to support fishery development in a controlled and sustainable way. the existence of legal certainty is a condition that is absolutely necessary in the handling of criminal acts in the field of fisheries. illegal fishing is a crime for the state of indonesia, so this then makes illegal fishing has fulfilled the element of article 27 paragraph (1) unclos 1982. thus, the indonesian government can enact indonesian law against illegal fishing vessels including vessel sinking. article 27 paragraph 5 of unclos 1982 further refers to chapter v on zee in the case of violations of coastal state legislation relating to the exploration and exploitation of fisheries resources. this is different if violations occur in zee, particularly violations of exploration activities and exploitation of fisheries resources. article 73 of unclos 1982 stated that if a foreign ship does not comply with the laws of the coastal state in terms of conservation of fishery resources, the coastal state may make the capture of the vessel. however, the vessel and its captured crew shall immediately be released with a reasonable bond given to the coastal state. the punishment of the foreign ship may not be in the form of corporal punishment, namely prison. this is because in zee, the coastal state has only sovereign rights and not sovereignty. under the provisions of article 73 of unclos 1982 emphasized that the policy of sinking a ship in indonesia is reasonable and not contrary to international law. 140 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad insan tarigan jils 3 (1) may 2018, 131-146 http://journal.unnes.ac.id/sju/index.php/jils the sinking of the ship is also not strictly regulated by the international plan of action to prevent, unreported and unregulated fishing 2001 (ipoaiuu fishing 2001). but in chapter iii, paragraph 8, ipoa-iuu fishing 2001 the purpose of ipoa is to prevent, obstruct and eliminate iuu fishing, by the readiness of the whole country with comprehensive, effective and clear action, including through appropriate regional fisheries management organizations established by international law. under this regulation that indonesia's sinking of vessels is still relevant to the ipoa-iuu fishing 2001, given that the sinking of the vessel is also not in conflict with unclos 1982. even under chapter iv verse (21) the ipoa-iuu fishing 2001 asserts that the state must guarantee sanctions iuu fishing is done by the widest possible ship, because the state under its jurisdiction is considered more effective to prevent, counteract and eliminate the practice of iuu fishing. this means that ipoa-iuu fishing provides freedom for countries to determine sanctions against illegal fishing boats. code of conduct for responsible fisheries 1995 also does not clearly set about drowning foreign ships that do illegal fishing. this rule only affirms the obligation for countries to manage fish resources in marine areas with the principle of responsibility. the effectiveness of the code of conduct for responsible fisheries (ccrf) is undertaken by requiring member states to provide progress reports every two years to fao. reports of member states will be a reference in determining the state's compliance status to fishing action responsibly and in turn averting a country from allegations of iuu fishing action. in view of the voluntary nature of the ccrf and the adoption model adopted in the application of the ccrf principles to the respective national laws, the implementation of the ccrf is subject to good faith and the ability of the state apparatus to adopt the ccrf‟s general principles relating to countermeasures iuu fishing (renhoran 2012: 19). however, vessel sinking is also not banned in the ccrf. in fact, the act of sinking a ship cannot be said to be in conflict with the ccrf. based on article 6 item 3 that states should prevent over-fishing and over-capacity fishing and implement management measures to ensure that fishing efforts are balanced with the productive capacity of the fishery resources and their sustainable use. illegal fishing can be one of the actions that can make fishing that exceeds capacity and does not pay attention to the fish population at sea. in addition, article 7.1.7 of the ccrf affirms that countries within their respective scope of authority and capacity shall establish effective mechanisms for monitoring, supervision, control of fisheries and their enforcement to ensure compliance with conservation and management measures. these two articles could serve as a basis for indonesia to implement ship sinking policies as an effective and decisive effort against irresponsible illegal fishermen and could disrupt the efforts of the international community to jointly maintain fish populations at sea. the joko widodo‟s policy to drown the fishing boats of foreign fishermen who stole fish in indonesian waters can no longer be protested 141 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 because this is part of the form of affirmation of indonesian sovereignty. foreign-flagged ships can no longer steal fish in indonesian waters. tni navy (al) began implementing joko widodo‟s instruction to sink the fishing thief vessels. according to him, the message of this sinking is that indonesia is not playing in the strict action of illegal fishing. even, he emphasized that indonesia must secure our oceans from looting foreign parties, that on land, in the sea, and in the air the territory of indonesia is the sovereignty of the republic of indonesia. therefore, every inch of his territory is the honor of this nation, as for the sound as, “like the javanese proverb that is often pronounced bung karno about the sovereignty of this nation: sadumuk bathuk sanyari bumi ditohi pati, a piece of territory is defended with life stakes because that is our honor.” 7 despite the pros and cons of president joko widodo's instructions to sink a foreign ship carrying illegal fishing of indonesian marine territory, rahman (2015) asserted that the instruction aims to show the firmness and dignity of the indonesian government in protecting the territory and its natural products, its sovereignty, a deterrent effect, securing the sea from the plundering of foreigners, as well as the real action of attempting to translate the vision of the maritime axis being intensified by the government in the past year, especially with regard to full sovereignty at sea. previously, reported that the indonesian authorities arrested as many as 200 malaysian fishermen who allegedly illegally catch fish in indonesian waters. president joko widodo said that foreign fishermen who illegally fish in indonesia do not need to be arrested, but the ship is drowned. the president also did not forget to say that before the ship was drowned the crew on the foreign ship must first be rescued. this assertive action is predicted to be effective will cause a deterrent effect because the vessel is the main production tool of the theft perpetrator. if the ship and its expensive equipment are drowned, the thief will think a thousand times to repeat the theft in indonesian territory because the motive of theft is for profit. the problem of illegal fishing by foreign ships is not a matter of the loss of fishery resources, but also about the violation of state sovereignty which is the very principle, for that law enforcement and our sovereignty must be really enforced. the decisive action of sinking this ship in international diplomacy is also felt to be very effective, a concrete and decisive act far more important and effective than a thousand threats. 7 tino berita, “instruksi presiden jokowi tenggelamkan kapal asing ilegal pencuri ikan”, online news, retrieved from http://tinoberita.blogspot.co.id/2014/12/instruksi-perintah-jokowitenggelamkan-kapal-asing-pencuri-ikan.html, access on 17 may 2016 http://tinoberita.blogspot.co.id/2014/12/instruksi-perintah-jokowi-tenggelamkan-kapal-asing-pencuri-ikan.html http://tinoberita.blogspot.co.id/2014/12/instruksi-perintah-jokowi-tenggelamkan-kapal-asing-pencuri-ikan.html 142 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad insan tarigan jils 3 (1) may 2018, 131-146 http://journal.unnes.ac.id/sju/index.php/jils analysis of the drowning of viking fv vessel by the government of indonesia according to nikijuluw the act of illegal fishing has the effect of costbenefit paralysis (economic paralysis due to crime) that is considered big. 8 although it is difficult to calculate and know the amount of its economic lost accurately. according to gianni and simpson, one of the difficulties in finding accurate data and information is the fact that illegal fishing is managed and run with a high level corporate structure and a complex business network that deliberately closes the real reality (gainni and simpson 2005: 84 ). similar to the illegal fishing action that occurs in the region and other countries in the world, indonesia also does not have the data and the exact number of illegal fishing that occurred in the waters. however, several researchers and institutions in indonesia have estimated the value of illegal fishing losses that occur based on assumptions and findings in the field. according to rokhmin dahuri, until 2002 the value of state losses due to illegal fishing action reached usd 1.362 billion per year (nikijuluw 2008: 67). in general, illegal fishing activities that occur in indonesian waters, among others: 9 1. unlicensed fishing; 2. fishing using false permits; 3. fishing using forbidden fishing gear; and 4. fishing with species that are not in accordance with the permit. one of the perpetrators of fv viking's illegal fishing vessel was captured by the navy in collaboration with interpol norway conducted at 12.7 miles north of tanjung berakit, bintan on 24 february 2016 (limahekin 2016). based on the position of the fishing vessel fv viking means including into the territory of exclusive economic zone of indonesia. pursuant to article 56 paragraph (1) of unclos 1982 coastal states have sovereign rights for the purpose of exploration and exploitation, conservation and management of natural resources, both biological and non-biological, from waters on the seabed and from the seabed and subsoil and in respect of other activities for the purpose of exploration and economic exploitation of such zones, such as energy production from water, currents and wind. in addition, coastal states also have jurisdiction to protect and conserve the marine 8 apec fisheries working group, assessment of impact of illegal, unreported, unregulated (iuu) fishing in the asia-paific. asia-pasific economic coorporation secretariat, singapore 2008, p 52 9 directorate general of supervision and control of marine and fisheries resources ministry of marine affairs and fisheries republic of indonesia (direktorat jenderal pengawasan dan pengendalian sumber daya kelautan dan perikanan departemen kelautan dan perikanan republik indonesia), kebijakan pengawasan dalam penanggulangan illegal, unreported and unregulated (iuu) fishing, ministry of marine affairs and fisheries, jakarta, 2006, p. 8 143 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 environment. this means that indonesia has the authority to enforce its law against the viking fv vessel. the viking viking ship goes to indonesia without carrying out the reporting obligations of identity and data of the voyage. in fact, it also does not have a fishing permit (sipi). surely this has violated article 27 paragraph (3) of law no. 45 year 2009 on fisheries. the ship without the sipi has fulfilled the element as sufficient proof of beginning, enabling the special conduct of the sinking of the vessel. moreover the viking fv ship is referred to as a stateless ship. in his statement, susi explains the 1,322 gt fv viking ship is a ship without nationality that has long been conducting illegal fishing activities in various parts of the world. by the regional fisheries management organization (rfmo) of south antarctic ocean called the commission for the conservation of antarctic marine living resources (ccamlr), this ship is categorized as the perpetrator of illegal fishing (ratya 2016). the fv viking crew consists of five foreigners from chile, argentina, peru, and myanmar, along with six indonesian citizens. the 11 crew members are juan domigo nelson venegas gonzales (captain), cirilo ramon (mechanical engine), elber jose diaz (deck boats-man), porfirio vicente alvarado bernal and tuykyaw khaing (crew) crew, agus subianto, didik tri ujawan, moh nurcholis, moh nurkolis, moh irchas, and wastari. viking fv master. juan domigo nelson venegas gonzalez admits, restless in the absence of certainty of legal status received by his crew. he said, until now there has been no clarity with their status. even the representatives of their respective countries no one came to take care of it until now. he began to worry about the conditions that befell his crew. meanwhile, head of psdkp batam, akhmadon said, for crew members fv viking, they only dititipkan by the navy. pursuant to article 73 paragraph (2) of unclos 1982 affirming that the captured ship and its crew shall be released immediately after being given a proper security deposit or other form of security. in addition, there is no coastal law entitled to violation of the fisheries legislation in zee shall not include confinement. in fact, in law no. 45 of 2009 also does not regulate the detention of crew members. however, article 69 paragraph (3) stipulates that the fishery supervisory boat may stop, inspect, carry and hold vessels suspected or reasonably suspected of committing violations in the territory of the republic of indonesia fishery management to the nearest port for further processing. if the fv viking crew is properly entrusted and not detained indefinitely then it is legitimate under national and international law. 144 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad insan tarigan jils 3 (1) may 2018, 131-146 http://journal.unnes.ac.id/sju/index.php/jils conclusion the impact of illegal fishing almost touches all aspects of community life, so it makes it a serious challenge for the coastal countries. illegal fishing takes place almost everywhere in the world. illegal fishing is a well-organized fishery crime, starting from national to international level. the joko widodo‟s policy to drown the fishing boats of foreign fishermen who stole fish in indonesian waters can no longer be protested because this is part of the form of affirmation of indonesian sovereignty. foreign-flagged ships can no longer steal fish in indonesian waters. the policy of drowning of illegal fishing perpetrators is not contradictory and still considered relevant to international law, such as unclos 1982, ipoa-iuu fishing and ccrf. the viking fv ship was captured by the navy in collaboration with norwegian interpol in zee indonesia. the viking ship goes to indonesia without carrying out the reporting obligations of identity and data of the voyage. in fact, it also does not have a fishing permit (sipi). surely this has violated article 27 paragraph (3) of law no. 45 year 2009 on fisheries. the ship without the sipi has fulfilled the element as sufficient proof of beginning, enabling the special conduct of the sinking of the vessel. by the south coast fisheries management organization (rfmo) called antarctic marine living resources (ccamlr), the ship is categorized as a ship perpetrator of illegal fishing. bibliography ariadno, melda kamil. hukum internasional hukum yang hidup. jakarta: media, 2007. amir, usmawadi. “penegakan hukum iuu fishing menurut unclos 1982 (studi kasus: volga case)”, opini juris, 2013 12(1): 45-57. apec fisheries working groupassessment of impact of illegal, unreported, unregulated (iuu) fishing in the asia-paific. singapore: asia-pasific economic corporation secretariat, 2008. data center statistics and information, fao (pusat data statistik dan informasi, fao). illegal 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nelayan vietnam di wilayah indonesia”, bachelor thesis, faculty of law universitas udayana, denpasar, bali, 2015. laws and regulations law no 45 of 2009 concerning fisheries (undang-undang republik indonesia nomor 45 tahun 2009 tentang perikanan) united nations convention on the law of the sea (unclos) 1982 international plan of action to prevent, deter and eliminate illegal, unreported and unregulated fishing 2001 code of conduct for responsible fisheries 1995 https://www.academia.edu/9754703/analisa_tindakan_khusus_penenggelaman_kapal_asing_sebagai_bentuk_detterence_effect https://www.academia.edu/9754703/analisa_tindakan_khusus_penenggelaman_kapal_asing_sebagai_bentuk_detterence_effect http://tinoberita.blogspot.co.id/2014/12/instruksi-perintah-jokowi-tenggelamkan-kapal-asing-pencuri-ikan.html http://tinoberita.blogspot.co.id/2014/12/instruksi-perintah-jokowi-tenggelamkan-kapal-asing-pencuri-ikan.html attention required! | cloudflare please enable cookies. sorry, you have been 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public service reform: a study on legal and social analysis (case of sragen, indonesia) puguh setyawan jhody, rodiyah puguh setyawan jhody postgraduate program, faculty of law, universitas sebelas maret surakarta  puguhesjhody54@gmail.com rodiyah administrative and constitutional law department, faculty of law, universitas negeri semarang, indonesia  rodiyah@mail.unnes.ac.id article info abstract submitted on april 2017 approved on august 2017 published on november 2017 the problem of poverty is a complex multidimensional problem as a general social phenomenon that requires steps to overcome, systematically, integrated, and comprehensive. these efforts are used to reduce the burden and fulfill the basic rights of citizens properly to bring about a prosperous society. current poverty reduction models tend to be misplaced, bureaucratic, weak monitoring and evaluation, overlapping authority, and budgetary wastage. therefore, the government of sragen regency established the poverty reduction service unit (upt-pk). the unit is an integrated cross-sectoral service unit in poverty alleviation with the aim of simplifying and facilitating the poor to access government programs that are for them. the focus of research on the model of poverty alleviation services based on education, health, socioeconomic, and data integrity and its implementation constraints. the research used qualitative research approach of law with type of sociological juridical research using analysis of interactive analysis models. poverty reduction is the policy of the government of sragen regency in realizing the welfare of the community. keywords: poverty reduction, public service, legal reform mailto:puguhesjhody54@gmail.com mailto:rodiyah@mail.unnes.ac.id 132 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang puguh setyawan jhody, rodiyah jils 2 (2) november 2017, 131-144 http://journal.unnes.ac.id/sju/index.php/jils introduction poverty reduction as part of the national development process requires coordinated steps in an integrated manner in the preparation of the formulation and implementation of poverty alleviation policies. national development is carried out continuously according to the priorities and needs of each region with targets set through the national medium term development plan (rpjmn) and the national long term development plan (rpjpn). the main gauge of success of national development is one of them is the decreasing number of poor people in indonesia. poverty can be defined as a low standard of living, that is, a degree of material deficiency in some or a group of people compared to the standard of living common in a society. this low standard of living directly affects the level of health, moral life, and self-esteem of those belonging to the poor. 1 article 28c paragraph (1) of the 1945 constitution states that “every person shall have the right to develop himself through his basic needs, shall be entitled to education and benefit from science and technology, art and culture in order to improve the quality of his life and for the welfare of mankind.” hence the problem of poverty is a matter of human rights and the state must guarantee the human rights of its citizens especially the right to increase the quality of life and welfare. article 34 of the 1945 constitution of the republic of indonesia also states that “the poor and neglected children are kept by the state.” this means that the state must be present through the programs and policies that make the people prosperous. the current condition of poverty is urging the government to issue presidential decree no. 15/2010 on the acceleration of poverty reduction, which contains the strategies and programs for accelerating poverty reduction, and the establishment of the national team for the acceleration of poverty reduction (tnp2k). it is expected that with this presidential regulation, the acceleration of poverty reduction can be done with sharpening efforts which include targeting, designing and integrating the program, monitoring and evaluation, and the effectiveness of the budget, it is also necessary to strengthen institutions at the national level that handle poverty alleviation. poverty is not only a matter of the central government, but also the problem experienced by the region, one of them is sragen regency. according to data from bps in 2015 the number of poor people in sragen regency is 130,420 persons or 14.87% or ranked as the poorest in central java. 2 it was responded by the government of sragen regency by establishing the integrated services unit of poverty alleviation (upt-pk) which is the only cross-sector unit in indonesia that engages in poverty alleviation, in education, health, and socio-economy. 1 suparlan, parsudi, kemiskinan di perkotaan. (jakarta: yayasan obor, 1998), 2 2 retrieved from http://sragenkab.bps.go.id http://sragenkab.bps.go.id/ 133 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 the focus of the problem in this research is to study: (1) how to model poverty reduction service in poverty reduction service unit (upt-pk) of sragen regency? (2) what are the obstacles to the implementation of poverty reduction service in poverty reduction service unit (upt-pk) of sragen regency? factual condition of poverty in sragen, central java, indonesia sragen regency has a population of 879,027 people and an area of 941.55 km 2 which is divided into 20 districts, 8 villages, and 200 villages. sragen area is divided into two parts, namely south of bengawan solo with 9 subdistricts and 88 villages, and north of bengawan solo with 11 districts and 120 villages. 3 of the two parts of the area, the northern areas of bengawan solo have very clear inequalities ranging from infrastructure, agriculture, to socioeconomic. inequality is one of the causes of the poverty rate so high in sragen regency. here is the poverty rate of sragen regency from 2011 to 2015: 4 table 1. poverty rate of sragen regency no year total population number of poor people percentage 1 2011 863.977 154.300 17,95 % 2 2012 868.090 145.300 16,72 % 3 2013 871.991 139.000 15,93 % 4 2014 875.615 130.280 14,87 % 5 2015 879.027 130.420 14,86 % seeing the poverty rate is so high, the government of sragen regency established the integrated services unit of poverty reduction (upt-pk) as the latest innovation of public service in sragen regency and the only one in indonesia. one stop service concept is applied to poverty alleviation program spread in various units the work of regional apparatus (skpd) is becoming more focused and one-door (uniting apart). the goal is to simplify and facilitate the poor to access the various government programs that are for them. in addition, upt-pk is supported by the existence of a single database of poverty that is always up to date and openly accessible biased, so that poverty reduction programs can be implemented directed and targeted. in relation to public services, poverty alleviation is faced with handling problems carried out across the regional device work units (skpd). this 3 data from sragen regency 4 retrieved from http://sragenkab.bps.go.id http://sragenkab.bps.go.id/ 134 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang puguh setyawan jhody, rodiyah jils 2 (2) november 2017, 131-144 http://journal.unnes.ac.id/sju/index.php/jils impact on the bureaucratic flow of the longer and more complicated. currently, it is not yet clearly established whether poverty reduction is included in the scope of public services, but implicitly can be seen in article 5 of law number 25 of 2009 on public service explained that “the scope of public services includes public goods and public services administrative services regulated in legislation. the scope as referred to in paragraph (1) includes education, teaching, employment and business, housing, communication and information, environment, health, social security, renewable energy, transportation, natural resources, tourism and other strategic sectors.” poverty is a multi-dimensional problem caused by many factors, poverty alleviation too. poverty alleviation cannot be implemented without breaking down and addressing issues of education, health, economy, housing and social security, so the government's role is needed through public services to the public. therefore it can be concluded that poverty alleviation is included in the scope of public services and can be implemented using an integrated service system in accordance with article 9 of law number 25 of 2009 on public service, namely “in facilitating the implementation of various forms of public services, integrated service system”. integrated service system can use one-stop integrated service and one-door integrated service. poverty reduction program is a policy implementation of local government in the process of prospering its citizens. there are several variables that affect the success of the implementation, one of which is the content of policy variable that includes the extent to which the interests of the target group or group target are contained in the policy content, the type of benefits received by the target group, the extent to which the desired change of a policy, the location of a program is correct, a policy has mentioned the implementer in detail, a program supported by adequate resources. 5 the purpose of a poverty reduction service is the realization of the independence and welfare of society. prosperity has four meanings, namely: 6 1. as a well-being condition that refers to the term social welfare (social welfare) as a condition of the fulfillment of material and non-material needs. prosperous conditions occur when human life is safe and happy because the basic needs of nutrition, health, education, shelter, and income can be met, and when humans are protected from the main risks that threaten their lives. 2. as social services. in the uk, australia and new zealand, social services generally cover five forms, namely social security, health services, education, housing and personal social services. 3. as social benefits in particular in the united states are given to the poor. because most of the welfare recipients are poor, disabled, and unemployed. this leads to negative connotations of welfare terms such 5 subarsono, analisis kebijakan publik. (yogyakarta: pustaka pelajar, 2009), 99 6 rofieq, ainur, “pelayanan publik dan welfare state”. jurnal governance, vol.2., 2011, 24 135 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 as poverty, laziness, and dependence, which is actually called social illfare rather than social welfare. 4. as a planned process or undertaking which is done by individuals, social institutions, communities and government bodies to improve the quality of life through the provision of social services and social benefits. providing services and facilities to the poor is a manifestation of the fulfillment of economic, social and cultural rights or ekosob rights that are part of human rights. the rights of the ecosystem include, among other things, the right to education, the right to housing, and to health. poverty reduction service model in upt-pk sragen regency, indonesia poverty is a multidimensional problem experienced by every region, poverty alleviation programs and policies have been carried out with models ranging from village to national level. upt-pk uses a model of poverty reduction services based on education, health, socio-economic, and data integrity. poverty reduction services education based the programs and policies of upt-pk in the field of education are the publication of the sintawati card (smart student of sukowati students) given to the poor sragen regency who are still in school (applicable to sd-smp) in order to get the poor facilities that have been provided. the concept of this card like smart card indonesia (kip), the difference sintawati card grouping card recipients into three, namely: (1) card melati melati; (2) sintawati menur cards; and (3) sintawati kenanga card. 7 another program is through the provision of outstanding student scholarships from poor families. this is based on the awareness of the government of sragen regency that poverty alleviation can not only be done by reducing the expenditure of the poor, but by investing in education, by providing scholarships to students from poor families, so that his hope after graduation can be a breaker of the poverty chain in his family. the recipients of this scholarship are sragen society which is included in the criteria of poor families. this scholarship is specially given for those who enrolled in state university (ptn) in java island, with scholarship amount rp. 12.000.000 per 7 interview with danik martini, s.stp as head of public welfare section of setda sragen, on december 20, 2016 136 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang puguh setyawan jhody, rodiyah jils 2 (2) november 2017, 131-144 http://journal.unnes.ac.id/sju/index.php/jils year. budget of scholarship program is located in the section of public welfare (kesra) regional secretary (setda) sragen. 8 the fulfillment of the right to education through the above programs is part of the welfare state concept which can mean that the fulfillment of education services to the poor is an indicator of prosperity conditions, where basic educational needs are met and protected from the main risks that threaten their lives. 9 poverty reduction services health based the health field is one of the focus of upt-pk in tackling poverty. the program is run by saraswati card (sarase warga sukowati) issued to the poor of sragen to get free health facility. the concept of this card such as healthy indonesia card (kis), the difference saraswati card grouping card recipients into three, namely: (1) kartu saraswati melati; (2) saraswati menur card; and (3) kartu saraswati kenanga. especially for saraswati melati and menur cardholder get all health service for free with third class treatment facility, either in puskesmas all of sragen regency, dr. soehadi prijonegoro sragen and dr. soeratno gemolong, dr. moewardi surakarta, surakarta mental hospital, orthopedic hospital, and dr. sardjito yogyakarta or dr. karyadi semarang. for hemocicisa or dialysis services get free for life. as for saraswati kenanga card get rp.250,000 and free dialysis five times. the implementation of health-based poverty reduction services through the saraswati card is part of the fulfillment of the right to health for citizens, especially for the poor. it is the responsibility of the government to take steps in the realization of the right to health, by creating conditions that will guarantee all medical care and care in the case of a person’s illness. 10 poverty reduction services social-economic based programs and policies undertaken by upt-pk in the field social economy is with ruselawati program (rumah sehat layak aman warga sukowati), which is program of repairing habitable home (rtlh, rumah tidak layak huni) which given to poor people in sragen regency. ruselawati is not intended for poor people with magersari status (occupying the land of others). every house that receives ruselawati's aid gets rp.5.000.000, for home improvement. this repair assistance is also intended for the people of sragen affected by fire, flood, hurricane, or other disaster. 11 8 interview with drs.indardjo, m.si as head of education upt-pk on december 20, 2016 9 rofieq, ainur. loc. cit. 10 sukardja, ahmad. hukum tata negara dan administrasi negara dalam prespektif fikih siyasah. (jakarta: sinar grafika. 2012), 215 11 interview with drs.indardjo, m.si as head of education upt-pk on december 20, 2016 137 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 another program is through the ambassador (compassionate condolence), the compensation or rope provided to the families of the poor who are eligible in other words meet the requirements. this program aims to help ease funeral expenses and other expenses. the benefits of this mourning money is rp.1,000,000. the ambassador is not granted to the heirs if the cause of his death by committing suicide, the hiv/aids virus due to deviant behavior, and committing a crime. 12 sragen regency government realizes that poverty reduction is not solely addressed by reducing the expenditure of poor households but also by fulfilling adequate housing. decent housing is a basic human need and has a very strategic role in shaping the character and personality of the nation, and needs to be nurtured and developed for the sake of continuity and improvement of the quality of life of society. 13 poverty reduction services data integration based the government of sragen regards the view that poverty must be addressed in the right way and data, so that in its policy the sragen government formed upt-pk which has the concept of single database of poverty by name by address so that poverty eradication program can be on target. data integrity-based poverty reduction is conducted using data, namely: (1) tnp2k data (national team for acceleration of poverty reduction) and ppls-bps (data collection of social protection programbadan pusat statistik); (2) upt-pk survey result data; and (3) sim poverty. 14 the data of poverty in the district according to tnp2k is 308,783 people, while according to ppls-bps data of the poor is 349,027 people, so from the data there are 40.244 people difference. the data used by the local government is data from tnp2k so that there are 40,244 citizens of sragen regency who previously stated poor according to ppls-bps data is not poor anymore after the government uses data from tnp2k, whereas from 40.244 people are still many people who enter the criteria of the poor. therefore, upt-pk combines data between ppls-bps and tnp2k data. these two data are used as the basis of upt-pk in saraswati card printing, ie the community included in tnp2k data received saraswati melati card, and data of difference from tnp2k and ppls-bps data got saraswati menur card. upt-pk is aware that only using data from tnp2k and ppls-bps is not enough. therefore, upt-pk has a survey mechanism that is intended for people applying for poverty alleviation services to upt-pk whose data are 12 ibid. 13 muhtaj, majda el., dimensi-dimensi ham mengurai hak ekonomi, sosial, dan budaya. (jakarta: rajawali press. 2008), 149 14 interview with drs.indardjo, m.si as head of education upt-pk on december 20, 2016 138 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang puguh setyawan jhody, rodiyah jils 2 (2) november 2017, 131-144 http://journal.unnes.ac.id/sju/index.php/jils not registered in tnp2k or ppls-bps data. if after the survey the community is included in the criteria of the poor, it will be given new saraswati menur card, and if not included in the criteria of poor or able to be said, it will be given card saraswati kenanga. the survey is based on poor household validation survey formulated in the regent regulation no. 59 of 2013 on guidelines on the implementation of verification of poor households, in which it distinguish poor households (rtm) into four, namely very poor (sm), poor (m), almost poor (hm), and vulnerable poor (rm). this grouping is based on 20 poverty criteria which is the development and refinement of 14 poor criteria from central bureau of statistics (bps). while poverty sim is a single database management using web-based applications. sim poverty as a poverty information system provides a database of poor people tnp2k, ppls-bps 2011, and additional data from upt-pk survey results. in addition, there is also a recap of data recipient services from the field of education, health, and socio-economic. sim poverty can be accessed by upt-pk as admin who can access all data and add data in it, skpd can only access report of who receiver of poverty alleviation program in skpd, sub-district only access related to data of poor society per sub-districts and card holder saraswati or sintawati, and the village can only access the data of the poor from the village. in addition, in poverty sim can also be accessed recap of data therapy for the poor. therapy is a service that has been given to the poor who have been done by related skpd. skpd data inputs into poverty sim, i.e the poor who have received the service or therapy, so that upt-pk can know who and what services have been given. the integration of poverty data owned by upt-pk is a public policy of sragen government to overcome poverty using correct data. in public policy theory, this is part of the policy formulation stage, that is, the integration of the data is the best policy and problem solving from the various choices and alternative policies. poverty alleviation cannot be successful if it starts from false and inaccurate data, therefore data integrity becomes the earliest problem to be solved. 15 furthermore, in relation to the implementation of the poverty reduction service program, prior to the establishment of upt-pk, poverty alleviation in sragen regency is implemented in skpd with data from skpd itself so that there are not right target, bureaucratic bureaucracy, monitoring and evaluation is weak, overlapping, and budget wastage. we can compare poverty reduction services before and after the establishment of upt-pk (see figure 1, and figure 2). 15 winarno, budi. teori dan proses kebijakan publik. (yogyakarta: media pressindo. 2004). 35-37 139 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 figure 1. poverty reduction services before upt-pk established figure 2. poverty reduction services after upt-pk established 140 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang puguh setyawan jhody, rodiyah jils 2 (2) november 2017, 131-144 http://journal.unnes.ac.id/sju/index.php/jils the model of poverty reduction services based on education, health, socio-economic, and data integrity is a model used by upt-pk in poverty alleviation in sragen regency. each type of poverty reduction service in each skpd and unit must involve upt-pk in the process of verification of poverty data, , social services need 250 data of poor society for ruselawati program, so social department ask for data and verification to upt-pk. then, if there are poor people who need poverty reduction service, upt-pk based on their sex only give recommendation and all kind of service is returned to skpd respectively as executor. here is a model of poverty reduction services in upt-pk sragen regency. figure 3. demonstration of poverty reduction service model in upt-pk perspective of research result 141 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 the results above show that the government of sragen regency through upt-pk has a model of poverty reduction that is different from other regions. upt-pk is a pattern of one-stop poverty reduction services. one of the forms of public service pattern is the one-door integrated service pattern that is the service which is held in one place having process link and served through one door. 16 in addition, in facilitating the implementation of various forms of public services, it can be performed the implementation of an integrated service system. 17 judging from the declining number of poor people in sragen regency, it is a measure of a successful implementation of policies implemented by upt-pk. the decline in the number of poor people indicates that the target (the poor) experiencing changes in life in education, health, and socioeconomics to be better and targeted. this is consistent with merilee s. grindle’s theory, which influences the successful implementation of the content of policy which includes the extent to which the interests of the target group or group target are contained in the content of the policy, the type of activity received by the target group, the desired change of a policy, the location of a program is correct, a policy has specified the implementer in detail, a program supported by adequate resources. 18 obstacles on the implementation of proverty reduction in upt-pk sragen regency, indonesia upt-pk as an institution / government agency cannot be separated from obstacles and obstacles. therefore, the authors describe the obstacles implementation of poverty reduction services in upt-pk sragen regency in internal and external perspective. a. internal constraints internal obstacles experienced by upt-pk, among others: (1) institutional; (2) budget; and (3) human resources. as the name implies, upt-pk is only a unit that stands on the basis of regulation of regent no.2/2012.upt-pk concerning to establishemtn of upt-pk sragen regency is not a skpd that has legal basis of regional regulation. because upt-pk status is still unit, then upt-pk only has the authority to verify the poverty 16 decree of the state minister for administrative reform of the republic of indonesia number 63 of 2003 concerning general guidelines for the implementation of public service, keputusan menteri negara pendayagunaan aparatur negara nomor 63 tahun 2003 tentang pedoman umum penyelenggaraan pelayanan publik 17 law number 25 of 2009 on public service, undang-undang no. 25 tahun 2009 tentang pelayanan publik 18 subarsono, loc. cit 142 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang puguh setyawan jhody, rodiyah jils 2 (2) november 2017, 131-144 http://journal.unnes.ac.id/sju/index.php/jils status of the people of sragen regency and provide recommendations to the related skpd to provide poverty reduction services. this is the biggest problem of upt-pk to date, the effort to make upt-pk as skpd still crashing government regulation no. 41 of 2007 on organization of regional government which does not regulate skpd specifically to handle poverty. at the end of 2016 the government regulation no. 18 of 2016 on the regional apparatus is issued, but the new regulation also does not accommodate skpd in the field of poverty alleviation. the institutional status constraint that is still in the form of this unit has an impact on upt-pk which cannot manage its own budget and has no human resources / its own employees. until now the upt-pk operational budget still has its share in sragen public prosperity (kesra), while the budget poverty alleviation is in skpd respectively. human resources also so, all employees or civil servants in upt-pk is the assistance of other skpd. this causes unfocused work because in addition to still doing the workload in the skpd origin, the employees also have to do basic tasks in upt-pk. b. external constraints external obstacles experienced by upt-pk, among others: (1) lack of central government support; and (2) local political factors. upt-pk is a new innovation, whose existence is not regulated by law, government regulation or ministerial regulation. since 2012 the government of sragen regency has requested the permission of the minister of home affairs to make upt-pk agency led by the echelon ii officials but always failed, the reason is that poverty is not a compulsory or optional thing that can be done by the regency. the legal basis for the establishment of upt-pk is only a bupati regulation. regent is a political position that can be changed based on the existing elections process, with the replacement of the regent of course also change the existing policies that lead to policy uncertainty, especially policies related to upt-pk which changed when there is a change of regent. conclusion based on the results of research and discussion it can be concluded that the model of poverty reduction services based on education, health, socioeconomic, and data integrity is a service model undertaken by upt-pk by using one-door integrated service pattern (ptsp). the poverty alleviation services include the sintawati card program, saraswati card, ruselawati, sang duta, integrate tnp2k and ppls-bps data, survey data and web-based sim poverty. in addition, each type of service is implemented by skpd related to involving upt-pk in the process of verifying poverty data. while the implementation constraints faced are institutional constraints, budget, 143 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 human resources, lack of central government support, and local political factors. based on the model of poverty reduction services in upt-pk sragen regency then the ultimate goal is the realization of prosperity and independence community sragen regency. bibliography suparlan, parsudi. kemiskinan di perkotaan. jakarta: yayasan obor, 1998 subarsono. analisis kebijakan publik. yogyakarta: pustaka pelajar, 2009. rofieq, ainur. “pelayanan publik dan welfare state”. jurnal governance, vol.2, 2011, 2-4. sukardja, ahmad. hukum tata negara dan administrasi negara dalam prespektif fikih siyasah. jakarta: sinar grafika, 2012. winarno, budi. teori dan proses kebijakan publik. yogyakarta: media pressindo, 2004. muhtaj, majda el. dimensi-dimensi ham mengurai hak ekonomi, sosial, dan budaya. jakarta: rajawali press, 2008. official site, sragen regency, badan pusat statistik kabupaten sragen, http://sragenkab.bps.go.id laws and regulations decree of the state minister for administrative reform of the republic of indonesia number 63 of 2003 concerning general guidelines for the implementation of public service, keputusan menteri negara pendayagunaan aparatur negara nomor 63 tahun 2003 tentang pedoman umum penyelenggaraan pelayanan publik law number 25 of 2009 on public service, undang-undang no. 25 tahun 2009 tentang pelayanan publik interview interview with danik martini, s.stp as head of public welfare section of setda sragen, on december 20, 2016 interview with drs.indardjo, m.si as head of education upt-pk on december 20, 2016 interview with drs.indardjo, m.si as head of education upt-pk on december 20, 2016 http://sragenkab.bps.go.id/ 144 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang puguh setyawan jhody, rodiyah jils 2 (2) november 2017, 131-144 http://journal.unnes.ac.id/sju/index.php/jils law adagium summum jus summa injuria, summa lex summa crux the highest justice can mean the highest injustice 113 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 volume 2 issue 02 november 2017 jils 2 (2) 2017, pp. 113-122 issn 2548-1584 e-issn 2548-1592 construction of ideological state apparatus in the new order regime against communism in indonesia yeby ma’asan mayrudin 1 , nurul hikmah zulfiana 2 yeby ma’asan mayrudin political science department, fisip universitas 17 agustus 1945 jakarta  yeby.mayrudin@gmail.com article info abstract submitted on june 2017 approved on october 2017 published on november 2017 gramsci’s hegemony theory underlies the theory of ideological state apparatus althusser studied in this paper, essentially also a repression of power. in empirical life, to create the subjectivity of society, the power paradigm of the new order era relies heavily on the repressive state apparatus, and the ideological state of the apparatus. the paradigm was also known as state corporatism. this paper discusses two important things related to ideological state apparatus related to communism in indonesia, namely: (1) the interpretation of communism in the new order regime, and (2) ideological state apparatus in the new order era. keywords: ideological state apparatus; new order (orde baru, orba); communism introduction for indonesia today, communist ideology is still a sensitive issue in various circles of indonesian society. as well as the pki (indonesian communist party, partai komunis indonesia) is still a scary and taboo scourge to be discussed by the public at large. the pki became a ban on ideology or 1 lecturer at political science department, fisip universitas 17 agustus 1945 jakarta 2 alumnus postgraduate program, department of politics and government, fisipol universitas gadjah mada, yogyakarta. mailto:yeby.mayrudin@gmail.com 114 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang yebby ma’asan mayrudin jils 2 (2) november 2017, 113-122 http://journal.unnes.ac.id/sju/index.php/jils people within it, even this was stipulated in the mprs/xxv/1966 decree which contained the banning of the pki in indonesia. this regulation was made during the soeharto era after the g-30s (september 30th movement of the pki), during which there was a massive killing of pki figures and members. the soeharto era known as the new order era, the determination of an ideology is in government approval. in the days of the new order, communism was very forbidden ideology. anyone who is considered communist or related to communism (in this case pki), life-even death, is definitely miserable. the survivors are arrested, tortured and exiled. the dead, his body could not be found, so his family could not bury him properly. this is how the hate crime spread by the new order government. the new order government sought to maintain its sovereignty by eliminating all those considered enemies. the new order regards the pki and those labeled as its minions a great enemy who can disrupt the national stability of the indonesian state. the new order seeks to equalize the government's and society's opinions through the ideological state apparatus popularized by althusser (lechte, 2001: 67). in this theory, althusser assumes that ideology does not represent the true state of the world. ideology is only a representation of the relationship between human perception and the situation that exists in the real world. in other words, the "real world" is a product of human perception that is influenced by ideology. ideological state apparatus that has the task of spreading the various discourses or ideology of the country, so that people are voluntarily subject to state power. this task is run through education or mass media. this ideological state apparatus provides various justifications or rules of play for repressive actions perpetrated by the state. this is what the new order does in understanding communist ideology and the like. the discourse formed by the government during the new order gave influence to the thinking of the society which then influenced the behavior of the people. the prohibition of pki understanding and discrimination against pki members to date still occur even when the pki has been burned down. the discrimination against the pki now appears in the form of its target is buru island's ex-political prisoner, where the detainees are suspected of having links and being involved with the pki. the discrimination that occurs is in the form of excommunication, the difficulty of accessing public services or facilities and the presence of parties opposed to the presence of ex-prisoners of buru island such as faki (front anti communist indonesia). this condition is the impact of the ideological state apparatus on the pki in the new order era. 115 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 „pki‟ and the new order the state is essentially established because of the agreements held between people who had lived independently, apart from one another without state ties. however, after the state, the freedom and freedom of everyone is slowly taken away by the state. according to thomas hobbes, the treaty was held in the hope that the common good could be preserved and guaranteed, so that “one person is not a beast to another” or homo homini lupus. 3 however, this is inversely related to the fact that often the country becomes a predator against its citizens. the relationship between whom the predator and the victim are essentially cannot be simplified simply because of the authority possessed by the state in carrying out common interests. this common interest then becomes the foundation for a country to develop. however, in reality over time, the state seems to forget the basic foundation of a country is formed. with power, the state often uses the pretext of common interest to legalize all actions taken. as was the case with the conflict between the pki and the new order government. in this conflict the state seems to have the highest authority to legalize any of its actions on behalf of 'for the sake of the nation'. violent incidents at the end of september 1965, until now still keep a little mystery. the new order regime in 32 years has monopolized the “interpretation” and clogged different views of the event. 4 even up to the present generation, not a few people are still following and loyal to the “interpretation” of the new order regime that isolates and frustrates exponents of the pki to its grandchildren. the outbreak of the september 30th movement of 1965-or commonly abbreviated as g30s or often relying on the word “pki”—which sacrificed seven generals, then led to the widespread national tragedy of mass murder of pki figures and exponents ranged from 1965-1966 and the event of arrest and the detention of persons accused of involvement in the activities of the pki, without trial. according to asvi warman adam, these three events are trilogy or three national tragedies arranged in chronological order. the fears of the new order regime will return and the development of the pki at a time, causing this regime to act so repressively against the exponents of the pki and its followers. since the g30s incident, those accused of involvement were labeled by the government in several categories or classes. category a or group a is individuals who have sufficient evidence to be involved with the pki, group b ie individuals who according to the military government at that 3 see c.s.t. kansil, hukum tata pemerintahan indonesia (jakarta: pt ghalia indonesia, 1984) 70. 4 pengantar redaksi dalam kasiyanto kasemin, mendamaikan sejarah: analisis wacana pencabutan tap mprs/xxv/1966 (yogyakarta: lkis, 2003) v. 116 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang yebby ma’asan mayrudin jils 2 (2) november 2017, 113-122 http://journal.unnes.ac.id/sju/index.php/jils time, not enough evidence but indicated a role in the movement of the pki or its underbody organization, and group c, individuals who are affected either directly or indirectly with communist ideology. those belonging to class b, „thrown‟ to buru island. this was done by the new order in 1969. 5 about 10,000 people were sent by the new order in several groups. however, at the urging of the international human rights institution, the indonesian government was forced to release the detainees in 1979. 6 the dark tragedy that has not been comprehensively comprehended until now and has not been able to punish its intellectual actors has become a record for future generations to try to make improvements for the future of national and state life better. in the discourse constructed by the new order, the g30s was a coup attempt to seize power by forcefully tortured and murdered the great generals of the time. the new order regime said explicitly that the perpetrators of the incident were indonesian communist party (pki) people and their sympathizers and some soldiers who were tricked into being communist followers. 7 in the new order era, most schoolbooks (especially history) contained images of the pki's atrocities, even in a regime's production film when it was described how members of gerwani (one of the pki's underbows), sadistically tormented the generals' bodies. in addition to the generals, other parties who became victims based on orba discourse at the time was the people whose land was taken by force even always terrorized and even threatened murdered by the pki and its sympathizers. however, the new order did not mention the victims of the alleged party as the pki. persons suspected of involvement with the pki were detained without trial, restricted to their political and economic rights, and excluded from society. 8 consequently, discriminatory and stigmatization attitudes experienced by exponents of the pki and its followers and their families. this thinking construct is then reinforced by mprs / xxv / 1966 tap which contains three things: the dissolution of the indonesian communist party (pki); the pki as an outlawed organization in all parts of indonesia; prohibition of any activity of spreading or developing the understanding or teachings of communism, marxism, and leninism. this tap is a strong hand to clear all things including the above three things that are considered contrary to pancasila and the 1945 constitution. issues related to communism became 5 the orba regime deliberately did so with the sole purpose of isolating the exponents of the pki and its followers in the preparation and holding of the elections to be held in 1971. 6 asvi warman adam, epilog: kejahatan kemanusiaan di pulau buru dalam hersri setiawan, memoar pulau buru (magelang: indonesiatera, 2004), 592-593. 7 sekretariat negara republik indonesia, gerakan 30 september pemberontakan partai komunis indonesia: latar belakang, aksi, dan penumpasannya (jakarta: pt citra lamtoro gung persada, 1994), 44-45. 8 adam, epilog: kejahatan kemanusiaan di pulau buru, 592-593. 117 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 the basic capital of the new order, to create economic, political, social, and cultural stability. 9 even when the exponents of the pki, its followers and sympathizers were “secured” behind bars, it was labeled as political prisoners (prisoners) who were released from detention to return to their area, to live side by side with other citizens, but unfortunately they got the label that discredited them inserting their id number with the addition of the et (ex-tapol, political prisoner) code, which is very influential on their life and their future. in addition, they are subject to special provisions, such as: each time period reports to the sub-district military-level agency; doing work in maintaining cleanliness and environmental safety; leaving home more than 24 hours must carry a letter from the military institution; should not be a public and private employee in the vital employment sector; and a number of other provisions. 10 in fact, the reconciliation of discriminatory attitudes and understanding of pki exponents, when the government of president abdurrahman wahid (gusdur) was presented to the public and continued into the constitutional test but failed. this is because the strong influence of the new order regime on the understanding of individuals who justify the pki's attitude of rebellious, anti-pancasila and constitution tendencies is still firmly embedded in the minds of indonesian hearts. the strong anti-pki discourse and its derivatives can be categorized as a success, however, the negative context of the new order regime in spreading the influence of its discourse or idea-or in the althusser ideological state apparatus-to the mindset of indonesians in view of the ex-political prisoners involved in the movement of the pki. in such a situation, it can be said that it occupies a hegemonic position within the social, cultural and ideological sphere. 11 ideological state apparatus of the new order the paradigm for the definition of anti-pki discourse and its derivatives began during the new order government led by soeharto. the government became "communist" and so on as its great enemy. this regime often carried out acts of oppression and stigmatization of all elements that smell of communism. one way is ideological state apparatus through mass media 9 kasiyanto kasemin, mendamaikan sejarah: analisis wacana pencabutan tap mprs/xxv/1966, 1-2. 10 saparinah sadli, prolog dalam hersri setiawan, memoar pulau buru (magelang: indonesia tera, 2004) 18. 11 ariel heryanto, intelektual publik, media, dan demokratisasi dalam ariel heryanto dan sumit k. mandal, menggugat otoriterianisme di asia tenggara: perbandingan dan pertautan antara indonesia dan malaysia (jakarta: kepustakaan populer gramedia, 2004), 48. 118 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang yebby ma’asan mayrudin jils 2 (2) november 2017, 113-122 http://journal.unnes.ac.id/sju/index.php/jils manipulation. through the mass media, new order rulers then propagated that the pki was a bad thing in society. anyone who helps the pki will be labeled a communist, and that means the enemy of the country. and, the enemy of the state is legally legitimate to be eliminated. from the context of the historical search above, it appears that the new order ruler wanted to perpetuate his power by eliminating the pki considered enemy, and frightening the people, in order not to help the pki. that way, the pki's disappearance from indonesian history will be faster. in addition, one of the ideological state apparatus conducted by the new order government is to include all elements of pki crime on historical learning materials at the school level. this is, of course, one of the examples that the state creates an identity of the 'pki' in the paradigm of community thinking which from generation to next generation will be inherited. the new order version of pki and communism was used as a psychological control tool for the people. referring to the gloomy period of the 1960s, the new order instilled in the memory of the indonesian people the specter or latent danger of communism and pki through various devices, for example through state speeches, textbooks and mass media. even routinely on every september 30th, g30s films were shown to portray the pki as a dangerous and cruel organization. in an essay entitled ideological states apparatus, althusser 12 says that discourse, whether in the form of statements, media content, or rules, serves as the domain and justification for state repression to its citizens. the reason, the state always needs loyalty and compliance of its citizens. to get it cannot only rely on power and violence alone, because it can be judged authoritarian. whereas the state always needs legitimacy so that power is not harassed. according to althusser, society is united not only by the economy but by ideology. 13 in this context, the government during the soeharto period subjected to the submission and obedience of its people through the dissemination of discourses related to communism in indonesia. althusser introduced the concept of a repressive state apparatus, which is identical with the system and state structure, which stands as a legitimate and explicit power buffer. examples are the military, the courts, and the bureaucrats. the second concept is ideological state apparatus (isa), namely religious institutions, culture, education, including mass media. the workings of the isa move more on ideological aspects. then it will ultimately be repressive too, as it is meant to manipulate consciousness. here althusser's thought actually reinforces the thinking of italian theorist antonio gramsci 14 about hegemony. gramsci's hegemonic theory, like the ideological state of the state apparatus althusser, is also essentially a 12 p. beilharz, teori-teori sosial, observasi kritis terhadap para filosof terkemuka (yogyakarta: pustaka pelajar, 2005), 4. 13 ibid., 4. 14 antonio gramsci, prison notebook. (london: lawrence and wishart international publishers, 1971/1995). 119 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 repression of power. the difference is that the repression in the hegemony is subtle in that it relies on moral and intellectual leadership and is active. hegemony is not achieved through coercive power, but through systemic (language), directional, and continuous discourse to win voluntary public acceptance of an idea or regime. 15 in empirical life, to create the subjectivity of society, the power paradigm of the new order era relies heavily on the repressive state apparatus, and the ideological state of the apparatus. the paradigm was also known as state corporatism. the new order regime instituted authoritarian corporatism in political organization as an instrument of exercising authoritarian political control, in the name of the "national goal" set by the ruling regime itself. 16 karl d. jackson gave the term “bureaucratic policy”, a form of totalitarian government that prioritizes mobilization rather than participation. 17 all elements of the state, society, and various economic powers are mobilized to achieve the state's goals, all of which are in the control of suharto's power. this phenomenon, called arief budiman, as an authoritarian bureaucratic development, 18 where state officials have wide authority to regulate and provide facilities to their cronies. over time, reliable entrepreneurs become independent then this new generation becomes a new elite, occupying the dominant class in an authoritarian bureaucratic development model. 19 at that time the mass media was placed as an ideological state apparatus that played a role to reproduce and maintain the stability of the regime's legitimacy. 20 the instrumentalist analyzes looked at the mass media life in indonesia at that time as the dominant instrument of the new order and capital owners. 21 the new order has a surplus of access to media, has media control legality as well as licensing monopoly. on the other hand, media owners have full power over their workers. the new order regime may well have mastered everything. entrepreneurs, as well as communities, are to be hegemony and subject to the rule of the state. at that time, according to richard robison, the glory of the country has exceeded the market power, the triumph of the state over the 15 h. hendarto, diskursus kemasyarakatan dan kemanusiaan. (jakarta: gramedia, 1992), 66. 16 richards robison, “indonesia: tension and state and regime dalam r. hewison dan rodan (eds). the political economy of south-east asia: an introduction. (melbourne: oxford university press, 1993), 45-46. 17 jackson , kd dan pye, lw., political power and communications in indonesia. (los angeles: university of california press, 1978), 4. 18 arief budiman, negara dan pembangunan, studi tentang indonesia dan korea. (jakarta: yayasan padi dan kapas, 1991), 13. 19 ibid. 20 hidayat, dn, gazali, e, & ishadi, sk., pers dalam “revolusi mei”, runtuhnya sebuah hegemoni (jakarta: gramedia, 2000), 6. 21 herman, e & chomsky, n (1998) manufacturing consent: the political economy of the media. (new york: sage publications, 1998), ix. 120 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang yebby ma’asan mayrudin jils 2 (2) november 2017, 113-122 http://journal.unnes.ac.id/sju/index.php/jils market. the state has become a predator that interferes with other institutions. 22 discourse construction is closely related to power and the definition of truth is often based on the will of the authorities. discourse construction is defined in such a way that it retains the advantage of the ruler, as sustaining and perpetuating power and as a basis of legitimacy over his power. similarly, the discourse of g30s, pki, communism and so on because the new order was born through its success defines the discourse is negative. in the extermination of the left group is done from the inner circle, then gradually in the second circle, so on until the outer circle. the deepest circles were the pki leaders who were killed without trial such as aidit and nyoto, and those belonging to the a group submitted to the military tribunal. the second circle is a group b tribe that some (as many as 10,000 people) are banished to buru island. the third circle is the group c prisoner who is required to report to the security apparatus, while the fourth circle is their family which is considered "unsanitary environment". the actions taken against the class b prisoners include a policy of handling those deemed to be directly or indirectly involved with the g30s. but the disposal to buru island is inseparable from the national policy to secure the 1971 election which was the first election since the new order. under the pretext of securing the election, 10,000 b-class prisoners were banished to a remote island in eastern indonesia. 23 the g30s/pki incident clearly affects not only the life of the state, but it has deeply and profoundly affected the family life where women not only become victims but become active perpetrators of reestablishing family life in the midst of a torn nation. what happened to buru's political prisoner may also be an example in which a woman experiences a “guilt by association” (targeted because she is a political prisoner's wife). hersri‟s remarks on torture, humiliation and sexual harassment by officers and bodyguards against children and tapol wives have reinforced the fact that until now has received no serious attention from the authorities. the political prisoners who get "freedom" can breathe fresh air again. however, this is a false one, because they are still required to report themselves to the military rulers of the time. 22 robison, r (1993). op.,cit., 33 23 asvi warman adam, epilog: kejahatan kemanusiaan di pulau buru dalam hersri setiawan, memoar pulau buru (magelang: indonesia tera, 2004), 593-594. 121 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 conclusion the new order version of pki and communism was used as a psychological control tool for the people. referring to the gloomy period of the 1960s, the new order instilled in the memory of the indonesian people the specter or latent danger of communism and pki through various devices, for example through state speeches, textbooks and mass media. even routinely on every september 30 th , g30s films were shown to portray the pki as a dangerous and cruel organization. gramsci‟s hegemony theory underlies the theory of ideological state apparatus althusser studied in this paper, essentially also a repression of power. in empirical life, to create the subjectivity of society, the power paradigm of the new order era relies heavily on the repressive state apparatus, and the ideological state of the apparatus. the paradigm was also known as state corporatism. this paper discusses two important things related to ideological state apparatus related to communism in indonesia. bibliography adam, asvi warman. epilog: kejahatan kemanusiaan di pulau buru dalam hersri setiawan, memoar pulau buru. magelang: indonesiatera, 2004. beilharz, p. teori-teori sosial, observasi kritis terhadap para filosof terkemuka. yogyakarta: pustaka pelajar, 2005. budiman, arief. negara dan pembangunan, studi tentang indonesia dan korea. jakarta: yayasan padi dan kapas, 1991. gramsci, antonio. prison notebook. london: lawrence and wishart international publishers, 1971/1995. hendarto, h. diskursus kemasyarakatan dan kemanusiaan. jakarta: gramedia, 1992. herman, e & chomsky, n. manufacturing consent: the political economy of the media. new york: sage publications, 1998. hidayat, dn., gazali, e. dan ishadi, sk. pers dalam “revolusi mei”, runtuhnya sebuah hegemoni.jakarta: gramedia, 2000. jackson, kd. dan pye, lw (1978) political power and communications in indonesia. los angeles, london: university of california press. kansil, c.s.t. hukum tata pemerintahan indonesia. jakarta: pt ghalia indonesia, 1984. kasemin, kasiyanto. mendamaikan sejarah: analisis wacana pencabutan tap mprs/xxv/1966. yogyakarta: lkis, 2003. 122 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang yebby ma’asan mayrudin jils 2 (2) november 2017, 113-122 http://journal.unnes.ac.id/sju/index.php/jils robison, richard. “indonesia: tension and state and regime dalam: r. hewison dan rodan (eds). the political economy of south-east asia: an introduction. melbourne: oxford university press, 1993. saparinah sadli, prolog dalam hersri setiawan, memoar pulau buru. (magelang: indonesiatera, 2004. sekretariat negara republik indonesia, gerakan 30 september pemberontakan partai komunis indonesia: latar belakang, aksi, dan penumpasannya. jakarta: pt citra lamtoro gung persada, 1994. 145 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 volume 2 issue 02 november 2017 jils 2 (2) 2017, pp. 145-154 issn 2548-1584 e-issn 2548-1592 the prospects for public management reform in indonesia dani muhtada dani muhtada administrative and constitutional law department, faculty of law, universitas negeri semarang, indonesia  dmutada@gmail.com, dmuhtada@mail.unnes.ac.id article info abstract submitted on july 2017 approved on october 2017 published on november 2017 after the fall of suharto, the government of indonesia has started to reform its public sector. the reform began with the introduction of law 22/1999 on regional autonomy and law 25/1999 on fiscal equalization between center and regions. the laws have created a huge wave of decentralization in almost all aspects of the management of indonesia’s public sector. yet, the future of such a reform is debatable. this article discusses the prospects for public management reforms in indonesia. this author argues that the government needs clear rules for effective implementation of decentralization. the government also needs to reinforce the role of provincial governments as the agents of the central as well as the coordinator of district governments. furthermore, the government needs to set standard budgeting, auditing, and reporting procedures for all local budgets, and mechanisms in order to monitor sharing of natural resources revenue and transfers. last but not least, the role of non-government organizations (ngos) and mass media is highly significant and required for a successful reform of public management. keywords: decentralization, public management reform, governance, regional autonomy, public sector. mailto:rodiyah@mail.unnes.ac.id mailto:dmuhtada@mail.unnes.ac.id 146 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang dani muhtada jils 2 (2) november 2017, 145-154 http://journal.unnes.ac.id/sju/index.php/jils introduction public management reform in indonesia began in 1999. this reform was highlighted by the enactment of law 22/1999 on regional autonomy and law 25/1999 on fiscal equalization between center and regions. these laws led indonesia to a rapid and radical process of decentralization. the rapidity is indicated by the fact that the country had only less than two years to prepare for the new decentralized system before the system became effective in january 2001. the new system transferred almost all of the national government’s authority to local governments except a few governmental affairs such as foreign affairs, defense and security, justice, fiscal and monetary, and religion. some observers call this process of decentralization as a "big bang" (meira, 2004; rabasa and chalk, 2001). to some extents, this rapid and radical public reform was successful in producing some benefits such as more efficient decision-making processes and service delivery across the country. however, some unintended effects were unavoidable. the purpose of this paper is to analyze the prospects for public management reform in indonesia, focusing on decentralization. firstly, it presents the characteristics of public management reform that has been introduced by the indonesian government since 1999. this includes the discussion on political and economic contexts, which triggered the reform. second, the paper discusses the success stories of public management reform as well as the side effects of the reform. third, the paper analyzes the prospects for public management reform in indonesia. conclusion and recommendations are presented at the end. decentralizing indonesia: an overview during the suharto era (1966-1998), the central government introduced and maintained a highly centralized system of government. the government controlled resources and made decisions for the lower level governments. sarundajang (2003, p. 95-96) highlights three impacts of such a centralized system on local governments. first, local governments experienced inefficient decision-making processes. any decision made by local governments had to get approval from jakarta before it was implemented. second, the centralized system discouraged local governments to produce their own policies. they were required to implement policies made by the national government. unfortunately, these policies were not always suitable for the local contexts. conflict and tensions sometimes occurred in certain localities because the policies did not match the local needs. third, as local aspirations were not channeled properly, people’s dissatisfaction to the government grew up. an 147 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 increasing number of people voiced a need for political reformation. some regions (e.g., aceh, papua, east timor) even demanded independency and launched separative movements. these internal conditions led to a demand for decentralization and greater regional autonomy in indonesia in the late 1990s. external factor also contributed to the growing demand for decentralization. in 1997, financial crisis hit asian-pacific regions. indonesia was among southeast asian countries that suffered heavily from the monetary crisis. president suharto was forced to step down in 1998 and a democratic election was scheduled for june 1999. an interim government under president habibie was established to manage the transition to democratic government. this new government produced a number of reforming legislations. among the many laws that sped through the house of representative in 1999 were law 22/1999 and law 25/1999. these laws had capacity to change the system and the structure of government radically. they removed centralism and provided a model to transform indonesia into a democratic decentralized country (turner and podger, 2003, p. 2). it is important to note that indonesia’s decentralization focuses on district governments. the central government transfers a vast governance authority to district governments, not to provincial governments. provinces are only allocated a few decentralized responsibilities and serve as a coordinating layer without authority over the districts. provincial governments are the agents of the central government for “deconcentrated” central functions. therefore, unlike the heads of district governments, the appointment of provincial governors requires presidential approval (ahmad and mansoor, 2002, p. 4-5). the key characteristics of law 22/1999 are the devolution of wide range of public service delivery functions to local governments and the strengthening of the elected regional councils that are responsible for monitoring and controlling local governments’ administrations. some important points of this law include the followings. first, regional autonomy is based on five fundamental principles: democracy, justice and equity, people’s participation and empowerment, the recognition of regional diversity and potentials, and the need for stronger regional legislatures. second, all government expenditure functions are assigned to districts except for foreign affairs, justice, defense and security, fiscal and monetary, and religion. third, the provinces have no hierarchical authority over districts and perform largely coordinating tasks. the provinces serve as the representative of the central government. fourth, the law spells out the functions that the district must perform including education, health care, and local infrastructure. these functions cannot be handed back to the provinces (sarundajang, p. 2003, 99102; dwidjowijoto, 2000, p. 83-87; ahmad and mansoor, 2002, p. 5). law 25/1999 focuses on the financial matters of decentralization. it is about fiscal equalization between the center and regional governments. the objective of the law is to empower regional economic capabilities and to 148 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang dani muhtada jils 2 (2) november 2017, 145-154 http://journal.unnes.ac.id/sju/index.php/jils formulate regional financial system based on the principles of justice, accountability, transparency, participatory, and proportionality. some key features of this law include the following. first, most of specific-purpose transfers from the center to local governments are replaced by a general allocation fund the total amount of which is specified as 25 percent of the central government revenues. its distribution among local governments is determined by certain formula. second, the revenues from sales of natural resources will be shared with the local governments in which they are produced. this provision benefits naturally rich districts in provinces such as aceh, papua, east kalimantan, and central kalimantan (mera, 2004, p. 3). this decentralization project has changed the face of indonesia significantly. the heads of district governments are no longer appointed by the central government, but are elected directly by the people. regional parliaments have the right to approve or reject the annual reports of the heads of regional governments (i.e., governors, regents, mayors). data from the world bank (2003, p. 1-2) indicates that over 2 million civil servants (2/3 of the central government workforce) were transferred to the regional governments. the data also shows that 239 provincial-level offices of the central government, 3,933 district-level offices, and more than 16,000 service facilities (e.g., schools, hospitals, health centers) were transferred to the governments at the district level. with the increased responsibilities and personnel, the sub-national share in government spending rose from 17% in 2001 to over 30% in 2002. as far as the type of decentralization is concerned, indonesia experiences three types of decentralization: devolution, deconcentration, and delegation. devolution refers to a transfer of authority from central governments to local governments enjoying “corporate status” given by state regulation. this type of decentralization is reflected in the nature of district governments after the reform. deconcentration refers to “the transfer of authority over specified decision-making, financial, and management functions by administrative means to different levels under the jurisdictional authority of the central government”. this can be seen on the roles of provincial governments that serve as “the agents” of the central government. delegation occurs when government decision making and administrative authority are transferred to organizations or corporations that are independent or under indirect control of the government. law 22/1999 enables local governments to make deregulation and to develop public-private partnerships for service delivery (turner and podger, 2003, p. 4-5). privatization is not a special concern of this law 22/1999. however, there are several laws following law 22/1999 that promotes privatization. one of the examples of these laws is law 7/2004 on water resources. this law changed the national water paradigm and management fundamentally. this included the transformation of water management orientation (i.e., from a single purpose to multi-sector purposes), authority (i.e., from centralization to decentralization), the community and the private sector participation (i.e., 149 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 from narrow to broader participation), and the shifting view of water (i.e., from water as social goods to water as economic goods with social and environmental values). the enactment of this law is actually a response to the world bank’s reform agenda concerning water resource management. in late 1997, the world bank indicated that they could not continue to assist the development of indonesian water resources and irrigation unless a broad reform in these sectors was undertaken. the world bank suggested water sector reforms and offered a loan program called the water resources sector adjustment loan (watsal). the government introduced law 7/2004 to provide a binding legal framework and amend any regulation that constrains the watsal reform (zaman, 2002, p. 3; nababan, 2004, p. 3). this case implies how globalization has affected the government’s structure and how the indonesian government adapted its structure to address variations in the purpose of government. decentralization: success and challenges several studies on the implementation of indonesia’s public management reform indicate the success stories of decentralization in the country. research by the asia foundation (2004) highlights three positive impacts of decentralization. first, decentralization has encouraged local governments to initiate new programs for improving their services. second, in areas where services are generally not accessible and the quality is poor, local governments have invested in such initiatives as mobile health clinics, mobile water tank services, and branch elementary and high schools in remote areas. third, some local governments have programs that cater to disadvantaged people such as free medical check-ups for expecting mothers, health cards for the poor, and scholarships for poor students. another research by suharyo (2003) indicates that decentralization has induced the birth and growth of various forms of public participation. the study shows widespread enthusiasm towards decentralization among society although the level of preparation taken by local governments varied. however, this project of public management reform has left unfinished problems, which can be seen in four areas: the assignment of functions over levels of government, local capacity to implement the functions, the intergovernmental fiscal system, and accountability at the local level (the world bank, 2003; turner and podger, 2003, p. 58-62; the asia foundation, p. 66-67). first, the assignment of functions over levels of government is still unclear. a lack of clarity is partly resulted from the weaknesses of the regulations on decentralization. conflicts among implementing regulations that are out of the line with law 22/1999 contribute to this problem. some laws following law 22/1999 such as the civil service law and the forestry law 150 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang dani muhtada jils 2 (2) november 2017, 145-154 http://journal.unnes.ac.id/sju/index.php/jils ignore the spirit of decentralization. in addition, a presidential decree gave certain agencies temporary exemption from decentralization. this problem results in unclear division of responsibility over levels of government (the world bank, 2003; turner and podger, 2003, p. 61). second, regional governments basically have the capacity to deliver the services assigned to them because the central government’s apparatus have handed over many central civil servants for the functions that were decentralized. unfortunately, problems such as a poor management of civil service could undermine the efficiency of service delivery. some districts experience substantial overstaffing, while the other districts experience shortages. for instance, the average ratio of the number of civil servants in the city of sabang in 2001-2003 was 1: 23. this means that a civil servant in sabang serves 23 citizens. meanwhile, in the same period, the average ratio of the number of civil servants in the city of dumai was 1: 438, which means that a civil servant in dumai serves 438 citizens (lembaga administrasi negara, 2005, p. 154-156). third, although the new fiscal system has several strong features (e.g., regional discretion over some taxes, equalization grant, regular financial report), the system is still highly unequal. for example, the richest district had fifty times more revenues per capita than the poorest one had in 2001 (lembaga administrasi negara, 2005, p. 33-35). in addition, most regions are still highly dependent on transfers from the center. less than five percent of all government tax revenues are generated by the regions’ own taxes, while local governments rely most of their revenues (over 90%) on transfers (the world bank, 2003, p. iv). the lack of strong own revenue sources also encourages local governments to raise improper taxes and fees which could negatively affect local investment climate. fourth, a rapid decentralization program does not necessarily lead local governments to good and clean governance. in fact, after the legislation on decentralization came into force, a wave of corruption cases committed by local officials swept across the country. for instance, there were 265 corruption cases involving the members of local legislatures in 2006. in the same year, 46 corruption cases involved the heads of municipal and provincial governments (rinaldi, purnomo and damayanti, 2007, p. 5). this problem implies that the accountability and transparency at the local level are still among the unfinished problems of the indonesia’s decentralization program. achieving better decentralization to achieve better results of decentralization program, the improvements of four major areas of decentralization need to be done. first, clear rules are required for effective implementation of decentralization. as indicated by turner and podger (2003, p. 61), international experience of decentralization 151 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 shows “the desirability of explicit, stable, and self-enforcing rules which establish the division of national political powers between national and subnational governments”. regional governments and their citizens need to obtain clear and coherent regulations on who is responsible and accountable for different assignments of governmental functions. on the one hand, such regulations can be used by regional governments to prevent the central government’s attempts to regain its control. on the other hand, the regulations can also be used as a mechanism to control and monitor regional governments. second, to improve the capacity building of district governments, the central government should reinforce the role of provincial governments as the agents of the central as well as the coordinator of district governments. the government also needs to create financial arrangements that promote regional cooperation at the provincial level. as is indicated by the world bank’s report (2003, p. iii), decentralization has encouraged the emergence of new local governments. many of these local governments are lack of human and administrative resources. the reinforcement of the provincial government’s role can help the local governments build their capacities. third, to resolve problems on the intergovernmental fiscal system, the government should redesign regional taxing powers. the current regulation on regional own revenue provides strong incentives for local governments to impose improper taxes and fees, while the central government does not have the capacity to monitor improper taxes and fees (the world bank, 2003). to quote ahmad and mansoor (2002, p. 9), the central government should establish standard budgeting, auditing, and reporting procedures for all local budgets, and mechanisms to monitor sharing of natural resources revenue and transfers. sanctions for districts and provinces that fail to submit timely, accurate, and comprehensive fiscal reports might be established. fourth, to improve the accountability and transparency at local governments, the contribution of non-government organizations (ngos) is significant. a study by rinaldi, purnomo, and damayanti (2007) indicates the significant role of indonesian ngos in fighting against corruption cases at the local governments. the study illustrates that a successful effort to fight against corruption depended much on the collaboration among local governments, law enforcers, and local anti-corruption activists (ngos). accountability and transparency at the local governments can also be achieved by improving citizens’ awareness of their rights. in this case, the role of local media (e.g., newspapers, radio, television, etc.) is highly significant and required. conclusion 152 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang dani muhtada jils 2 (2) november 2017, 145-154 http://journal.unnes.ac.id/sju/index.php/jils in 1999, indonesia started a rapid and radical process of decentralization. this decentralization transferred almost all of the national government’s authority to local governments except a few governmental affairs such as foreign affairs, defense and security, justice, fiscal and monetary, and religion. to some extents, this rapid and radical public reform was successful in producing some benefits such as more efficient decision-making processes and service delivery across the country. however, the decentralization has left unfinished problems, especially in four areas: the assignment of functions over levels of government, local capacity to implement the functions, the intergovernmental fiscal system, and accountability at the local level. to achieve better decentralization, the government needs clear rules for effective implementation of decentralization. it also needs to reinforce the role of provincial governments as the agents of the central as well as the coordinator of district governments. the government should also establish standard budgeting, auditing, and reporting procedures for all local budgets, and mechanisms to monitor sharing of natural resources revenue and transfers. finally, the role of non-government organizations (ngos) and mass media is highly significant and required. bibliography ahmad, m., and mansoor, a. “indonesia: managing decentralization”, imf working paper: fiscal affairs department and independent evaluation office, 2002, retrieved april 13, 2010, from http://www.imf.org/external/pubs/ft/seminar/2000/fiscal/mansoor. pdf dwidjowijoto, r. n.otonomi daerah: desentralisasi tanpa revolusi. jakarta: pt elex media komputindo, 2000. lembaga administrasi negara. evaluasi kinerja penyelenggaraan otonomi daerah periode 1999-2003. jakarta: pusat kajian kinerja otonomi daerah, 2005. mera, k. “the big bang decentralization in indonesia and the lessons learned”, paper presented at the international workshop urban government in global perspective, at university of southern california, september 17 – 18, 2004. nababan, h. “water privatization: learning from indonesian cases”, 2004. retrieved on april 13, 2010, http://www.freedomfromdebtcoalition.org/main/pages/000198.php rabasa, a., and chalk, p. indonesia’s transformation and the stability of southeast asia. pittsburgh, pa: rand, 2001. rinaldi, t., purnomo, m., and damayanti, d.“fighting corruption in decentralized indonesia: case studies on handling local government corruption”, 2007. retrieved april 15, 2010, from http://www.imf.org/external/pubs/ft/seminar/2000/fiscal/mansoor.pdf http://www.imf.org/external/pubs/ft/seminar/2000/fiscal/mansoor.pdf http://www.freedomfromdebtcoalition.org/main/pages/000198.php 153 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 http://siteresources.worldbank.org/intjusforpoor/resources/f ightingcorruptionindecentralizedindonesia.pdf sarundajang, s. h. birokrasi dalam otonomi daerah: upaya mengatasi kegagalannya. jakarta: pustaka sinar harapan, 2003. suharyo, w. i. “indonesia’s transition to decentralized governance: an evolution at the local level”, smeru working paper presented at the seminar on decentralization and regional development in indonesia, may 15-16, in yogyakarta, indonesia, organized by the center for asia pacific studies – ugm in cooperation with the department of anthropology, leiden university, 2003. the asia foundation. indonesia rapid decentralization appraisal (irda). fourth report, retrieved april 15, 2004, from http://asiafoundation.org/pdf/irda4_english.pdf the world bank. decentralizing indonesia: a regional public expenditure review, report no. 26191-ind, retrieved april 15, 2003. http://unpan1.un.org/intradoc/groups/public/documents/apcity/un pan014188.pdf turner, m. and podger, o. decentralization in indonesia: redesigning state. canberra: asia pacific press, 2003. zaman, m. “restructuring of the water sector in indonesia: an institutional and legislative challenge”, 2002, retrieved on april 13, 2010, http://www.bicusa/issues/misc_resources/455.php http://siteresources.worldbank.org/intjusforpoor/resources/fightingcorruptionindecentralizedindonesia.pdf http://siteresources.worldbank.org/intjusforpoor/resources/fightingcorruptionindecentralizedindonesia.pdf http://asiafoundation.org/pdf/irda4_english.pdf http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan014188.pdf http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan014188.pdf http://www.bicusa/issues/misc_resources/455.php 154 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang dani muhtada jils 2 (2) november 2017, 145-154 http://journal.unnes.ac.id/sju/index.php/jils law adagium lex neminem cigit ad impossibilia the law does not force someone to do something that is impossible 253 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils volume 3 issue 02 november 2018 jils 3 (2) 2018, pp. 253272 issn (print) 2548-1584 issn (online) 2548-1592 model of implementation of juvenile criminal system to the criminal offender (educative perspective on institute for special development children lpka kutoarjo, central java, indonesia) m. dony arifin m. dony arifin polytechnic maritime indonesia (polimarin), semarang  donyarifin@gmail.com table of contents introduction ………………………………………………….….. 253 children protection in indonesia: how criminal law provide a justice and security at the same time? ………………………………………………………….…….. 260 a. model of implementation on juvenile delinquency: a moral, character and religious approach ………………………………… 261 b. integrated model for juvenile criminal system in educative perspective……………………………………………………..…….. 268 conclusion ………………………………………………………… 270 reference ………….……………………………………………….. 271 copyright © 2018 by author(s) this work is licensed under a creative commons attributionsharealike 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. mailto:donyarifin@gmail.com 254 m. dony arifin jils 3 (2) november 2018, 253-272 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on january 2018 approved on july 2018 published on november 2018 the kutoarjo class i special guidance institute purworejo regency, central java, the author chose as a research locus, because he wanted to see the extent of article 1 paragraph 2 of law number 12 of 1995 implemented. the formulation of the problem in this study as follow: (1) how is the implementation of juvenile crime on criminal offenders in an educative perspective at the kutoarjo class i special guidance institute purworejo district, central java? (2) what is the model of the implementation of child crime on criminal offenders in an educative perspective at the kutoarjo class i special guidance institute purworejo district, central java? this study aims to: (1) describe the implementation of juvenile crime on criminal offenders in an educative perspective at the kutoarjo class i special training institute purworejo district, central java. (2) finding a model of the implementation of juvenile crime on criminal offenders in an educative perspective at the kutoarjo class i special guidance institution in purworejo district, central java. the results of research on the implementation of juvenile crime on criminal offenders in an educative perspective at the kutoarjo first class special guidance institution in purworejo regency, central java have not been fully and consistently implemented. this is evidenced by the inconsistencies in the schedule for the existing children facing the law (anak berhadapan dengan hukum, abh). it is also proven by the lack of competent educators in their respective fields. with the formation that is still theoretical, it can be guaranteed that the abh will not be able to become a new person who is confident later, because it will be continuously shadowed about jugde as a prisoner. this mindset that must be changed from now on, with various kinds of learning using the islamic boarding school model that is taught and instilled since in prison, will bring positive impact on abh along with its good future. keywords: juvenile delinquency, abh, correctional institution, lpka, children how to cite (chicago manual style) arifin, m. dony. 2018. “model of implementation of juvenile criminal system to the criminal offender (educative perspective on institute for special development children lpka kutoarjo, central java, indonesia)”, journal of indonesian legal studies (jils), 3 (2): 253-272. 255 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils introduction the world of children is a world where children are still in the process of forming characters or searching for identity, being different when a child must be faced with a reality that is far from the level and reasoning power of a child, especially having to deal with the law, therefore there is a different treatment for children dealing with the law with other criminal offenders, the special treatment lies in the realization of a judiciary that truly guarantees the protection of the best interests of children facing the law. children are a gift from god that brings happiness in the family. how many couples are less happy and harmonious, not only because they do not have enough wealth or love, but because they have not been given a child who has been long awaited. children are a mandate from god to parents. parents must be responsible for meeting the needs of children both physically and spiritually. children need guidance and direction until they are able to be independent and have a purpose in life. the main thing that is the duty of parents is to provide education which is a guide in achieving a happy life in the world and the hereafter. the obligation of parents in guarding themselves and their families from the punishment of hell fire is found in the qur'an of the following attahrim verse 6: o you who have believed, protect yourselves and your families from a fire whose fuel is people and stones, over which are [appointed] angels, harsh and severe; they do not disobey allah in what he commands them but do what they are commanded. (gani 1998: 951). the verse according to sayyid sabiq emphasizes the responsibility of parents to family members. thus it is very important to protect yourself and your family from the torment of hellfire. one way to look after ourselves and our families from the torments of hellfire is to carry out education that is in accordance with sharia or islamic teachings (budiyanto 1999: 2). ali bin abi talib also said in connection with the interpretation of this verse, that the way to get to the point of saving oneself and family from the torment of hellfire is by educating and teaching them (rahman 2008: 17). humans as a perfect beings and have been provided by their lord in the form of physical and spiritual reason. each has the potential to be explored and empowered to the fullest through the educational process. where reason must be fulfilled with science that is able to expand the horizon thinking about what is in the surrounding environment. the body needs adequate clothing, food and health needs, such as vitamins, nutrition, and medicine. likewise with the spirituality that the author considers to be an intermediary medium 256 m. dony arifin jils 3 (2) november 2018, 253-272 http://journal.unnes.ac.id/sju/index.php/jils (relationship) between the creator and his creatures through the spiritual values that have been contained in the qur'an and hadith. this position is very much needed for empowerment through education to lead people towards a better and dignified direction. the most important development of human resources (human resources) and prioritized through the education process is in accordance with the ideals of our nation as outlined in the constitution of our country, which is the life of the nation. the progress and development of culture, science and technology today, is the fruit of the work of a human civilization that is felt today. the rapid progress and development of the civilization certainly has a huge impact on various aspects of human life today. many positive effects obtained from the progress of civilization, but not a few negative aspects that exist. the most prominent and very easy to observe aspect is the increase in the quality and quantity of crime, such as theft, robbery, murder, corruption and so on. the country of indonesia, which is a developing country, also feels the impact of changing times and the increasing number of crimes. primary deviations in the socio-cultural context and are very varied and only have side effects for the individual's physical structure. basically, primary deviation does not result in symbolic reorganization at the level of self-attitude and social role. secondary deviations are deviant behavior or social roles based on primary deviations (utari 2012: 109). fig. 1 cases of children based on clusters in 2011-2016 (data from kpai: 2017) according to kpai data that abh in 2011 amounted to 695 children, in 2012 there were 1,413 children, in 2013 there were 1,428 children, in 2014 there were 2,208 children, in 2015 there were 1,221 children, in 2016 there were 733 children. the data is only in one cluster, abh, not to mention the other clusters, as shown above. 1 therefore, progressive law enforcement does 1 http://bankdata.kpai.go.id/tabulasi-data/data-kasus-per-tahun/rincian-data-kasusberdasarkan-klaster-perlindungan-anak-2011-2016 257 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils not only apply laws such as black-and-white text rules (according to the letter), but also in accordance with the spirit and deeper meaning (in accordance with the meaning of the laws or regulations (rodiyah 2017: 125). the increase in crime that occurred in the country of indonesia, became a big problem for the nation's development. this problem must be sought immediately, because indonesia is a country based on law (the 1945 constitution: article 1 paragraph 4), so the resolution of the problem against the increasing crime above is to use legal media. the common law and is often used to regulate the problems of governance in society and state in indonesia are private law and public law (moeljatno 1982: 1). these laws are rules that are deliberately made to regulate people's lives and are compelling, meaning that every citizen and foreign citizens who lives or resides in indonesia, must be willing to comply with existing regulations. that way, every act that violates these rules, as a consequence, will get a reward or punishment as a reaction to the people's desire for the crime they committed (kansil 1986: 29). crime is a form of crime, so the person who commits the crime must be held accountable for what he has done. the process of handling criminal cases is an ongoing process, starting from the stage of investigation, prosecution, and trial until the execution of court decisions. article 10 of the criminal code (kuhp) explains that sanctions or punishments for crimes that occur include: capital punishment, imprisonment, imprisonment, seizure of certain items, etc (usfa and tonggat 2004: 2). from the types of sanctions that exist in the criminalization of the perpetrators of these crimes, then prison crimes are often used to punish the perpetrators of the crime. offenders are not always committed by adults, but also underage children. the existence of a deviation from the legal provisions carried out by children, forced the government to immediately make efforts to overcome, both preventive (repressive) and repressive, or in the form of sanctions. preventive countermeasures can be done with efforts to avoid violations of law by the community. whereas repressive mitigation is the countermeasures carried out by imposing sanctions that are appropriate to the perpetrators in accordance with the criminal acts committed. the life of the community is sometimes encountered deviant behavior among children who commit acts against the law without recognizing social and economic status. on the other hand there are also children who do not get love and attention both physically and psychologically. the condition of these inadequate children, intentionally or unintentionally, often triggers children to take actions that harm themselves and the community. child delinquency or commonly referred to as juvenile delinquency is a malicious behavior (dursila), or crime/delinquency of children and adolescents caused by a form of social service, so they develop deviant forms of behavior. the manifestation of behavior that leads to juvenile delinquency problems include speeding on the road which disrupts traffic security, gang fights, skipping school, and even child crimes such as stealing, picking, 258 m. dony arifin jils 3 (2) november 2018, 253-272 http://journal.unnes.ac.id/sju/index.php/jils seizing, grabbing, carrying out murder, rape, and other acts of violence who violates the law (kartono 1992: 7). law no. 11 of 2012 describes children who are dealing with law as children in conflict with the law, children who are victims of criminal acts, children who are witnesses of criminal acts, children in conflict with the law, hereinafter referred to as children, are children who are 12 years old, but not yet 18 years old who is suspected of committing a criminal act. regarding the issue of prison, what should be a concern and attention for us is the issue of imprisonment of children. imprisonment which is the imposition or imposition of prison sentences for someone who violates and commits a crime (badudu and zain 1994: 1033), it is not appropriate to use it and apply it to children. this is because the condition of children is still very much different from the conditions of adults and parents. children who are fostered in a child correctional institution have child status, namely: 1. criminal children, namely children who were found guilty by the court and sentenced to deprivation of independence; 2. child of the state, namely a child who is found guilty by a court handed over to the state to be educated up to 18 (eighteen) years; 3. civil children, namely children who, upon the request of their parents / guardians, obtain a stipulation from the district court, are entrusted to a special juvenile correctional institution (marlina 2009: 152). the imprisonment system uses a penal system which is essentially the treatment of convicts directed through the process of coaching, not punitive (punishment) and revenge. in this system prisoners are placed as prisoners, as individuals, members of society and creatures of god. in the correctional system in indonesia, it is based on pancasila, whose policies not only provide punitive sanctions for the removal of freedom of movement or the deprivation of sustainable independence, so that respect for the community and the correctional institution can return as development capital. in general, juvenile correctional institutions, lpka kutoarjo class a penitentiary institutions contribute to a variety of positive activities for abh, one of which is in the field of educative punishment such as life skills, with the aim to provide abh with expertise that can they use after leaving prison and they are expected to be able to socialize with the surrounding community. article 1 number 2 of act number 12 of 1995 concerning correctional institutions, that the correctional system can be understood as an order regarding direction and limits, as well as ways of fostering prisoners. based on pancasila which is carried out in an integrated manner between the coach, the coached, and the community to improve the quality of prisoners. in order to be aware of mistakes, improve themselves and not repeat crimes so that they can be accepted back in the community, and play an active role in development and can live naturally as good and responsible citizens. this system will be realized by the cooperation of the community to participate in 259 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils fostering and willing to receive back the prisoners who have completed their prison (priyatno 2006: 104). the responsibility of the state, government and regional government in law number 35 of 2014 concerning child protection is regulated in several articles which include obliging and giving responsibility to respect the fulfillment of children's rights regardless of ethnicity, religion, race, class, sex, ethnicity , culture and language, legal status, birth order, and physical and/or mental conditions, as well as protecting, and respecting the rights of children and responsible in formulating and implementing policies in the field of child protection, then in this law the regional government is obliged and responsible for carrying out and supporting national policies in the implementation of child protection in the regions that can be realized through regional efforts to develop child-friendly districts / cities, as well as providing support for facilities, infrastructure, and availability of human resources in the implementation of child protection. obligations and responsibilities as above, the state, government, and local government also guarantee the protection, maintenance and welfare of children by taking into account the rights and obligations of parents, guardians or other people who are legally responsible for children, overseeing the implementation of child protection, guarantee children to exercise their rights in expressing opinions in accordance with the age and level of intelligence of children, and the most important obligations and responsibilities are to provide basic education of at least 9 (nine) years for all children and provide the widest opportunity for children to obtain education and provide free education or assistance or special services for children from underprivileged, neglected children and children living in remote areas. hopefully the great mandate given by this law can be carried out by the state, government and regional governments to realize their responsibilities and obligations towards children who are the generation of the nation. the existence of children who commit criminal acts in indonesia currently extends to the criminal aspects that have formally violated the provisions stated in the criminal code (kuhp), or criminal legislation outside the criminal code, for example law narcotics law and child protection act (sudarsono 2012: 5). the term naughty child is contained in the juvenile court law, in the child criminal justice system act it is no longer used. terminology is adjusted to law number 11 of 2012 concerning the child criminal justice system. the term bad boy is changed to a child who is faced with the law. children are people who are 12 (twelve) years old, but have not reached 18 (eighteen) years, who are suspected of committing a criminal act (soetedjo and melani 2013: 166). based on the description above, it will be studied how the special guidance institute for class i kutoarjo, purworejo regency, central java, in forming abh prison (abh) independence. on this basis, the title “model of implementation of juvenile criminal system to the criminal offender 260 m. dony arifin jils 3 (2) november 2018, 253-272 http://journal.unnes.ac.id/sju/index.php/jils (educative perspective on institute for special development children lpka kutoarjo, central java, indonesia)” as the research title, in the hope of contributing to the scientific treasures in education, specifically related to educational learning. children protection in indonesia: how criminal law provide a justice and security at the same time? the definition of a child in the convention on the rights of the child (crc) is stated in article 1 which states that “a child is every human being under the age of 18 (eighteen), except under the act that applies to children, maturity is achieved faster.” meanwhile, from the juridical aspects, the definition of terminology, children in indonesian positive law are commonly interpreted as people under age (mind-working / underage) underage conditions (mind-work/inferiority), or often referred to as people under guardianship (minderjarige ondervoordij). starting from these aspects, it turns out that indonesian positive law (ius constitutum) does not regulate the standard legal unification and applies universally to determining age limitation criteria for a child (mulyadi 2005: 4). children are the second descendants as a result of relationships between men and women. in arabic there are various kinds of words used for the meaning of children, even though there are positive differences in their use, for example the word walad means generally a child, but what is used for children born to humans and animals is concerned (fahruddin 1991: 24). internationally the definition of children is contained in the un convention on the rights of the child in 1989, the 1985 beijing rules and the human declaration of human rights in 1948 (marlina 2009: 33). various existing literature, it turns out in the field of criminal law is not known as the term child crime, which is known in the literature of criminal law is crime. the term refers to a violation of law committed by someone, perhaps someone who is an adult or a child who is underage. thus the term child crime is a combination of 2 (two) terms, namely crimes and children, and each term has its own meaning (sambas 2013: 9). criminal or punishment is the general naming of all legal consequences because it violates a legal norm. criminal words also as a term of words: suffering, education, balancing, and so on (sianturi 1996: 12). crime comes from the dutch language straf (strafbaar feit) or delict or crime in english. but in a number of literatures and criminal law legislation, there are other terms used by scholars to translate strafbaar feit, such as: criminal acts, criminal cases, criminal offenses, punishable acts, punishable acts etc (sambas 2013: 9). the term criminal is more appropriate than the term punishment, because the law is commonly a translation of recht. criminal is more 261 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils precisely defined as a suffering which is deliberately dropped or given by the state to a person or several people as a result of the law (sanction) for his actions which have violated the prohibition of criminal law. in particular the prohibition in criminal law is referred to as a criminal act (strafbaar feit) (chazawi 2002: 24). the term punishment may be interpreted narrowly, namely punishments in criminal matters, which are often synonymous with criminal penalties or sentences that have the same meaning as sentences or veroodeling. the term criminal term has a more specific meaning, so there must be a limitation that can characterize its distinctive characteristics (sambas 2010: 12). a. model of implementation on juvenile delinquency: a moral, character and religious approach the implementation of juvenile crime on perpetrators of crimes in kutoarjo class 1 lpka purworejo regency, central java, has tended to be done normatively as stated in the existing regulations so that the substance of a regulation that is for the good of children cannot be realized, it is proven that crime rates are increasing every year indeed, it is very complex if we tend to blame it on the handling side, such as kutoarjo class 1 lpka purworejo regency, central java. the model that the author offers is a model that arises because of the author's overall and complete understanding of the good regulations of law number 11 of 2012 concerning the child criminal justice system, law number 1 of 1974 concerning marriage, law number 4 year 1979 concerning child welfare, law number 39 of 1999 concerning human rights, law number 20 of 2003 concerning national education system, law number 14 of 2005 concerning teachers and lecturers, government regulation number 74 of 2008 concerning teachers as has been amended by government regulation number 19 of 2017, government program on one day school system, and purpose of implementation of 2013 curriculum in primary and secondary schools. basically, all the above regulations substantially prioritize the best things for children as the next generation of the nation. as what was stated by ivan as a law-faced child (abh) that the implementation of activities in kutoarjo class 1 lpka purworejo district, central java was conditional, the conditional referred to was inconsistency that there was a schedule but there was no implementation. the author has the development of a renewable educative model that is considered appropriate and suitable to be applied at the kutoarjo class i special guidance institute purworejo regency, central java. this educational model can be referred to as the a3u, an abbreviation of aqidah, akhlaq, agama (religion) and umum (general). of the four pillars, all are one 262 m. dony arifin jils 3 (2) november 2018, 253-272 http://journal.unnes.ac.id/sju/index.php/jils unity that cannot be separated and has one purpose and purpose, namely repentance. the first is aqeedah. aqidah is the initial stage because it is considered to have the main role and initial milestone that must be possessed and embedded in the abh. aqidah ( ) is etymologically derived from the arabic language al-aqdu ( ) which means bond, at-tautstiqu ( ) which means strong belief or belief, al-ihkamu ( ) which means to establish, and arrabthu biquwwah ( ) which means binding strongly. in terms of terminology, aqeedah means steadfast and sure faith, there is no doubt whatsoever for those who believe in it (al-uthaimin 1999: 614). aqidah in syara 'ie faith in allah, his angels, his books, his apostles and to the last day and to good and bad qadar, as stated in the pillars of the faith and described in the qs. al-baqarah verse 177 as follows: righteousness is not that you turn your faces toward the east or the west, but [true] righteousness is [in] one who believes in allah, the last day, the angels, the book, and the prophets and gives wealth, in spite of love for it, to relatives, orphans, the needy, the traveler, those who ask [for help], and for freeing slaves; [and who] establishes prayer and gives zakah; [those who] fulfill their promise when they promise; and [those who] are patient in poverty and hardship and during battle. those are the ones who have been true, and it is those who are the righteous. aqidah is in line with the beliefs of the abh respectively. with the correct teaching the aqidah can make all the stages on it towards the ultimate goal. teaching about this aqidah must be based on god the creator. every act we have to do must be based on god, because the aqidah is considered a life-controlled operator, so that abh can be peaceful and peaceful in every direction. therefore every human purpose will be achieved if it is based on the perfect aqidah. similarly, abhs in the special forces of special class development kutoarjo children of purworejo regency of central java, they must be equipped and implanted in him with correct and perfect injection of aqidah. aqidah is what one believes. if it is said “he has the correct aqidah” means his aqidah is free from doubt. aqidah is the act of the heart that is his trust and justification. as exemplified by the author, the abh at the kutoarjo first class special guidance institution in purworejo district, central java must be taught with materials that are directly applied to daily activities. thus it can provide changes and make the abh in the kutoarjo class i special guidance institution purworejo district central java really be a new person who has the faith. second is akhlaq. etymological understanding of morals can be interpreted as character, character and character (ministry of education and 263 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils culture 1994: 15). the word moral comes from arabic, plural of khuluqun ل ) ,which according to terminology is interpreted as character (خ temperament, behavior or character. according to rahmat djatmika explained, morals can be divided into two types, including according to the etymology of the word moral originating from arabic (ق خال) the plural form of khuluq ( ل which means ,(خ character. synonyms are ethical and moral. ethics comes from latin, ethos which means habit. moral comes from latin too, mores which also means habit. whereas according to the terminologist, the word character consists of the words "mind" and "character". budi is what is in humans, which is related to consciousness, which is driven by thought, a ratio called character. character is what is seen in humans, because it is driven by feelings of the heart called behavior. so, manners are a combination of the results of ratios and feelings that manifest in human intention and behavior (djatmika 1994: 26). abuddin nata explained, morality is an action that is carried out deeply and without thought, but the act is ingrained and inherent in the soul, so that when doing an act no longer requires consideration and thought (nata 1997: 5). elizabeth b. hurlock explained that behavior which may be called “true morality” not only conforms to social standards but also is carried out voluntarily, it comes with the transition from external to internal authority and consist of conduct regulated from within (hurlock 1978:386). imam alghazali (nd: 58) suggests the definition of morality as follows: "that morality is an embedded character in the soul from which actions arise easily by not requiring consideration of the mind (first)". the nature of morality according to al-ghazali includes two conditions. first, an action must be constant, which is done repeatedly in the same form, so that it can become a habit. second, the act must grow easily without consideration and thought, that is not because of pressure, coercion from others or even beautiful influences and persuasions, etc. according to him also, that morality is not knowledge (ma'rifah) which explains good and evil, and nature (qudrah) for good and bad, and not also practice (fi'l) that is good and bad, but a state of mind that is stable ( hay'arasikha fi an-nafs) (kamil 1975: 81-82). morality is an attitude or will of a human being accompanied by a sincere intention in the soul that is based on the qur'an and al-hadith from which will arise the deeds or habits easily, without the need for guidance first. if the will of the soul produces good deeds and habits, then it is called a praiseworthy character (akhlaq mahmudah). on the contrary, when it comes to bad deeds and habits, then it is called a disgraceful character (akhlaq madzmumah). raharjo (1999: 63) explains, that moral education is education about the basics of morals and the virtues of temperament, the character that must be possessed and habitual by children from the time of analysis until he becomes a mukallaf, someone who is ready to sail the sea of life. such moral 264 m. dony arifin jils 3 (2) november 2018, 253-272 http://journal.unnes.ac.id/sju/index.php/jils education will grow and develop by resting on the foundation of faith in god and being educated to always be strong, remember leaning, asking for help and surrender to him, and will have the potential and an instinctive response in accepting every virtue and glory. the author concludes, moral education is an activity carried out consciously and intentionally to provide guidance, both physically and spiritually, through the planting of islamic values, moral, physical training and producing changes in a positive direction, which can later be actualized in life, with habits behave, think and have noble character towards the formation of human beings of noble character, where they can produce actions or experiences easily without having to contemplate and be intentional or without consideration and thought, that is not because of pressure, coercion from others or even influence beautiful effects and actions must be constant (stable) carried out repeatedly in a frequent form so that it can become a habit. the description above the author also argues that the abh at the kutoarjo first class special guidance institution in purworejo district, central java need to be equipped with moral education. such moral education can help abhs to behave positively both in prison and outside with the community. however, every education taught by a teacher to each student will always be remembered and imprinted on the student. what distinguishes the students lies in their daily applications. if the student belongs to the category of students who are diligent, diligent, clever and obedient, it can be said that he carried out everything taught by the teacher. this situation will turn around one hundred percent, if a student falls into the category of students who have problems, both within the school and the community, then it can be said that everything taught by the teacher when in the classroom, will be heard by the right ear and then released through the ear the left side. in other words all that is taught does not have a significant influence. the author also argues that it is very necessary to have qualified teachers or murabbi for the abh at the kutoarjo class i special guidance institution in purworejo district, central java, because the assistance from murabbi will determine the success or failure of the abh in kutoarjo special class i institution. purworejo regency, central java, becomes a positive person both in terms of science and behavior, when in prison and after going out and socializing with the surrounding community. murabbi is required to have the skills according to the knowledge needed for the abh at the kutoarjo class i special training institute purworejo regency, central java. in addition to skill that is capable, noble character must also be owned by every murabbi who is assigned to assist the abh. all will not have a positive effect if the accompanying murabbi is not as expected, because positive influences usually lead to a positive aura too, so the two are related to each other. third is religion. religion comes from the arabic ad-din. the qur'an uses the word din to refer to all types of religion and belief in god. etymologically ad-din means obedient, submissive, and surrender. in 265 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils terminology means something that is made a way by humans and followed (obeyed) in the form of beliefs, rules, worship, etc., right or wrong. religion, besides being known as ad-din, is also commonly referred to as religion. these three terms generally constitute a system of credo (belief or order-belief) for the existence of something that is deemed absolute outside of man and one system of human rite (worship) to those he deems absolute, and the system of norms (rules) which regulates the relationship between humans and other realms, in accordance with and in line with the faith and the intended worship system. religion, religion and ad-din each have their own etymological meanings, each of which has its own history and history, but in the technical meaning of terminology, the three terms have the same meaning (saifuddin 1993: 9). nasution (1979: 9-10) explains, because there are too many notions of religion proposed by experts, then religion can be given the following definition: 1. recognition of human relations with magical powers that must be obeyed; 2. recognition of the existence of supernatural powers that control humans; 3. binding oneself to a form of life that contains acknowledgment to a source that is outside of human beings that affects human actions; 4. trust in an occult power that gives rise to a certain way of life; 5. a system of behavior that comes from supernatural powers; 6. recognition of the obligations that are believed to be a source of an occult power; 7. the worship of magical powers arises from feelings of weakness and feelings of fear of the mysterious powers that are found in the realms around humans; 8. religion that god revealed to man through an apostle. the description above the author argues, that religion is another factor that is considered to have an important role as well, to be taught and instilled in each abh at the kutoarjo class i special institution of purworejo district, central java. religion in question is not only devoted to islam, but for all religions, because the abh in the kutoarjo class i special guidance institute purworejo district, central java adheres to various religions. all religions always teach the good to their people, therefore the murabbi or other companions are also required to teach abh at the kutoarjo class i special guidance institute purworejo district, central java in accordance with their respective beliefs. the religious material that is taught must be in accordance with the existing curriculum and should be supplemented with other religious materials, which relate to their respective beliefs. humans consist of two elements, namely physical and spiritual. both of these elements have their own needs. physical needs are fulfilled by science and technology, while spiritual needs are met by the need for religion and morality. if both of these needs have been fulfilled, according to religion, one will get happiness in the world and the hereafter. religion emphasizes that spiritual happiness is more important than material happiness. material 266 m. dony arifin jils 3 (2) november 2018, 253-272 http://journal.unnes.ac.id/sju/index.php/jils happiness according to religion is temporary and will be easily destroyed, while spiritual happiness is eternal. the expression above can be concluded that religion is the grip of every human being. it can be ascertained, for humans who do not have a handle, then he will be fragile and shaky in every journey of his life. as must be done by the abh at the kutoarjo first class special guidance institution in purworejo district, central java, they are required to have a handle, especially when abh is in prison. it can be said, all that abh felt when being in prison became an inner pressure, because abh experienced various changes, both physical and mental. abh feels isolated and gets a negative stamp, both from the community in the previous and current environment. therefore, the abh at the kutoarjo first class special guidance institution in purworejo regency, central java, must be equipped with a handle that is considered to be the strongest, namely religion. abh at the kutoarjo first class special guidance institution in purworejo district, central java should also be provided with materials as taught in islamic boarding schools. the author focuses on the education model in boarding schools, because the material taught and the results obtained are considered very positive. these positive results can be obtained with the maximum and optimal teaching from the murabbi. islamic boarding school materials that the author intended such as fiqh lessons (containing the procedures for worshiping god), ulum al-qur'an wa al-hadith (containing the history of the qur'an and hadiths revealed, contents of the qur'an) and hadith, the benefits of the koran and hadith for the ummah and others), and the arabic language (containing the procedures for communicating in arabic, both for formal and informal events) and other materials. abh at the kutoarjo first class special guidance institution in purworejo regency, central java, which is non-muslim, is expected to also study materials related to their beliefs. for example, for abh who are christians, priests or religious assistants are required to teach about the subject matter in the bible. with a variety of supporting material related to the beliefs of the abh considered important, because it will bring a positive impact on abh in particular, positive for everyday thoughts and behavior and is expected to be able to make the abh in the special guidance institute for kutoarjo class i purworejo java middle of being a person and person who has morality in society. fourth is general. what is meant by the general term here is general knowledge, other than religious knowledge. general knowledge can be included in the category of science. the author numbered the ending of science, not because it did not have significance, but the portion given to abh at the kutoarjo class i special guidance institute purworejo regency, central java, about science must still be given accordingly, according to the curriculum implemented by the government. whereas for aqeedah, morality and religion are prioritized, because according to the authors the three become the initial basis to be owned by abh at the kutoarjo class i special 267 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils guidance institute purworejo regency, central java as a handle in daily life and later supplies. science in terms of terminology is the theme of „alima which means knowing, knowing, feeling, and believing. in terms of science is the production of images or forms of things in reason (ministry of waqf and islamic affairs of kuwait 2007: 291). sutari barnadib explained, that science is a complete and structured description of an object. whereas amir daien indrakusuma defines science as a systematic and methodical description of a matter or problem (ahmadi 2007: 79). in world life, science has a very important war. the development and progress of science makes it easy for life both in individual life and in community life. according to al-ghazali with knowledge all forms of wealth, glory, authority, influence, position and power will be obtained. what can be obtained by someone as a fruit of science, not only obtained from its relationship with fellow human beings, the animals also feel how the glory of man, because of the knowledge he has (al-ghazali nd.:12). from here, it can be clearly concluded that the progress of a nation's civilization depends on the advancing scientific knowledge. general science or science in question is the material or subjects as taught to the abh in the special guidance institute for kutoarjo first class children purworejo district, central java, such as indonesian language, mathematics and citizenship. as explained in the third chapter, that these subjects have been taught to the abh at the kutoarjo class i special guidance institution in purworejo district, central java, but the reality of the lessons is only delivered to the abh when the teachers can attend. if the teacher is unable to attend, then the abh will be diverted to study independently or for those who are not willing, can fill their spare time with positive activities such as music or farming and others. according to the author, this situation cannot be left alone, because it can be said that the abh has been deprived of their rights, especially in the field of education. this general science must be obtained by the abh at the kutoarjo first class special guidance institution in purworejo regency, central java, according to the hours that all students in formal school must obtain, because with maximum education, it is expected that abh does not feel that they are isolated and viewed negatively in society. although in reality this is true, but it would be wonderful if the abh especially those in the kutoarjo first class special guidance institution in purworejo district, central java feel comfortable with the new status they are carrying, maybe even the abh can forget for a moment if they are in a state unpleasant. the four factors above show that they are all related to each other and will not get the maximum result, if not equipped with the fifth model is the refinement. the rehabilitation here is intended as the ultimate goal of the previous four educative educational models. with the repentance it is hoped that the abh in the special building board for children class i kutoarjo purworejo regency of central java has been deterred and will not repeat the 268 m. dony arifin jils 3 (2) november 2018, 253-272 http://journal.unnes.ac.id/sju/index.php/jils previous actions. repentance is often interpreted with regret. the fruit of the regret is to leave what makes him regret and replace with things that do not make him regret. b. integrated model for juvenile criminal system in educative perspective the author argues that the five components above must work together and support each other, because they cannot stand alone. the five are one unit to produce perfect output and as expected. in other words, the important point of the educative punishment model that will be applied to the abh at the kutoarjo class i special guidance institution in purworejo regency, central java, later can make them become new individuals who have morality and dignity for their lives. details of new educative models on the implementation of juvenile crime on criminal offenders in an educative perspective at the kutoarjo class i special guidance institute purworejo regency, central java as follows: 1. the prison has competent teachers (clerics) to be used as murabbi (abh mentors); 2. each murabbi will guide approximately 10 (ten) abh, because with increasing numbers will make the model of guidance less than optimal; 3. murabbi is obliged to stay in prison with abh, by means of always standby and accompanying abh every day, starting from waking up to going to sleep again; 4. murabbi has multi-educative qualifications, not only fluent in religious sciences but proficient in all sciences. this is very necessary, because it will help abh to be more intense in changing their behavior; 5. it is permissible for sanctions for abh to violate, but the sanctions given must be more educational rather than physical; 6. prison officers must participate in realizing the success of this system. management functions are essentially the main tasks that must be carried out by leaders in any organization. the leaders have different thoughts about several functions of management. however, the difference does not make something meaningful, because it is only different in the use of the term. first, the opinion of henry fayol quoted by siagian states that management functions consist of planning, organizing, commanding, coordinating, and controlling (siagian 1985: 103). second, the opinion of george terry which is translated by winardi said that management as a process consisting of planning, organizing, actuating, and controlling. as for each of these points, it is still used both in the field of science and other expertise, because in order to achieve the planned goals (terry 1982: 28). the author argues, from the description above, it should be better in managing the direction, one should implement a number of programs that have been planned and established. all of that is nothing but not for the development and progress of a particular organization towards a better one. 269 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils the explanation of each function in management according to terry is as follows (silalahi 1996: 135): a. planning planning is an activity to set goals and formulate and regulate the utilization of human resources, financial information, methods and time to maximize efficiency and effectiveness in achieving goals. this plan includes actions to select and connect facts and use assumptions about the future, in terms of visualizing proposed activities and deemed necessary to achieve desired results. the author argues, planning is a process of thought and decision-making that is mature and systematic about several actions that will be carried out in the future, with the aim of knowing how management is expected in boarding schools. b. organizing organizing is grouping and determining various important activities and giving power to carry out these activities. organizing activities include: 1. divide the components of activities needed, to achieve goals into groups; 2. divide task to a manager, to hold the grouping; 3. establish authority between groups or organizational units. in organizing the activities of islamic boarding schools, a leader (kyai) must carry out the division of tasks and submit responsibility and implementation to their respective members (according to their respective technical guidelines). with the assignment carried out by each officer, it will facilitate the management of the islamic boarding school. c. actuating actuating can be defined as an effort or effort to stimulate boarding school management personnel to look for and manage with enthusiasm. with these actions they are expected to have activities and creativity to achieve the goals planned at the beginning. mobilization can also be defined by the overall effort, methods, techniques and methods to encourage members of the organization to want and willingly work as well as possible, because all of them are to achieve organizational goals effectively, efficiently and economically (siagian 1992: 128). the author argues that driving activities for islamic boarding schools have important meaning, because these mobilization activities are directly related to the implementer (individual/human), so with this mobilization activity, it is considered more effective to complement the two activities above. d. controlling supervision is the process of observation of the implementation of all organizational activities to ensure that all work being carried out goes according to plan. in order for guardianship to produce the expected results, serious attention needs to be given to the various principles of fundamental thinking, including the following (siagian 1992: 171-172): 270 m. dony arifin jils 3 (2) november 2018, 253-272 http://journal.unnes.ac.id/sju/index.php/jils 1) efficiency, which is to use the available resources to a minimum, to produce certain results specified in the plan; 2) effectiveness, namely the achievement of various targets that have been determined precisely (accordingly) in time, using certain sources that have been allocated to carry out various activities; 3) productivity, namely maximizing the results that must be achieved by utilizing resources that have been previously allocated; 4) responsibility, which is to carry out the truth of the tasks that have been given to him; 5) evaluation, namely the determination or measurement of standard results of work and correction of deviations that might occur. the author concludes, the management system should be realized in the kutoarjo class i special guidance institute purworejo district, central java, because it is like a building will not be able to stand firm, if not built with appropriate and maximum construction. therefore, let us participate together, at least contribute to progressive thinking, to deliver generations of nations and nations who are moral al-karimah to create a developed and developing indonesia today. conclusion the implementation of juvenile crime on criminal offenders in an educative perspective at the kutoarjo first class special guidance institution in purworejo regency, central java has not been carried out fully consistently and maximally. the results of the study indicate that there are inconsistencies in the differences between theory and practice in the field. the phenomenon in the field is not in accordance with law number 35 year 2014 which is regulated in several articles including obliging and giving responsibility to respect the fulfillment of children's rights regardless of ethnicity, religion, race, class, gender, ethnicity, culture and language, status law, birth order, and physical and/or mental condition, and protect, and respect the rights of children and are responsible for formulating and implementing policies in the field of child protection, then in this law the local government is obliged and responsible for implementing and supporting national policies in the implementation of child protection in the regions that can be realized through the efforts of the regions to develop child-worthy districts / cities, as well as providing support for facilities, infrastructure, and the availability of human resources in the implementation of child protection. it can be said, that the implementation of juvenile crime on criminal offenders in an educative perspective at the kutoarjo class i special guidance institute purworejo regency, central java, still requires a lot of improvements both in terms of technical and human resources that are directly related to the institution. the model of implementation of juvenile crime found in criminal offenders in an educative perspective at the kutoarjo first class special 271 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils guidance institution in purworejo district, central java is only normative and has not been based on islamic boarding schools, because basically they do not know about the system. reference ahmadi, abu and nur uhbiyati. ilmu pendidikan, jakarta: rineka cipta 2007. al-ghazali, abu hamid muhammad , t.th., ihya’ ulum al-din ch. iii, beirut: dar ihya al-kutub al-ilmiyah. badudu, j.s. and sultan muhammad zain. kamus umum bahasa indonesia, jakarta: pustaka sinar harapan, 1994. budiyanto, mangun. beberapa aspek pendidikan islam, yogyakarta: uin sunan kalijaga, 1999. djatmika, rahmat. sistem ethika islami (akhlak mulia), jakarta: balai pustaka, 1994. gani, h. bustami a. al-qur’an dan terjemahannya, semarang: cv. al-wahh, 1998. hurlock, elizabeth b. child development, edition iv, kugllehisa, mc. grow hill, 1978. indonesian criminal code, kuhp kansil, c.s.t. pengantar ilmu hukum dan tata usaha indonesia, jakarta: balai pustaka, 1986. kartono, kartini. patologi sosial ii: kenakalan remaja, jakarta: rajawali press, 1992. law no. 11 of 2012 concerning to juvenile court, uu nomor 11 tahun 2012 tentang pengadilan anak. marlina. peradilan pidana anak di indonesia: pengembangan konsep diversi dan restorative justice, bandung: refika aditama, 2009. melani, dan wagini soetedjo. hukum pidana anak, bandung: refika aditama, , 2013. moeljatno. asas-asas hukum pidana, yogyakarta: gajah mada university press , 1982. nasution, harun. islam dilihat dari beberapa aspeknya, jakarta: ui press, 1979. nata, abudin. akhlak tasawuf, jakarta: pt. raja grafindo persada, 1997. priyatno, dwidja. sistem pelaksanaan pidana penjara di indonesia, bandung: refika aditama, 2006. raharjo, pemikiran pendidikan islam, kajian tokoh klasik dan kontemporer, yogyakarta: pustaka pelajar, 1999. rahman, jamal. tahapan mendidik anak, yogyakarta: irsyad baitus salam press, 2008. 272 m. dony arifin jils 3 (2) november 2018, 253-272 http://journal.unnes.ac.id/sju/index.php/jils saifuddin, endang. wawasan islam, jakarta: pt raja grafindo persada, 1993. sudarsono. kenakalan anak, prevensi, rehabilitasi, dan resosiliasi, jakarta: rinekka cipta, 2012. the 1945 constitution, uud 1945 usfa, a. fuat and tonggat. pengantar hukum pidana, malang: umm press. 2004. utari, indah sri. aliran dan teori dalam kriminologi, cet. i, yogyakarta: thafa media, 2012. rodiyah, philosophy of progressive law on establishment of laws and regulations in the context of substantive justice: an indonesian experience, international journal of business, economics and law, 2017, 13(4): 125-131. […] http://bankdata.kpai.go.id/tabulasi-data/data-kasus-per-tahun/rinciandata-kasus-berdasarkan-klaster-perlindungan-anak-2011-2016. http://bankdata.kpai.go.id/tabulasi-data/data-kasus-per-tahun/rincian-data-kasus-berdasarkan-klaster-perlindungan-anak-2011-2016 http://bankdata.kpai.go.id/tabulasi-data/data-kasus-per-tahun/rincian-data-kasus-berdasarkan-klaster-perlindungan-anak-2011-2016 213 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils volume 3 issue 02 november 2018 jils 3 (2) 2018, pp. 213-236 issn (print) 2548-1584 issn (online) 2548-1592 corporate responsibility in money laundering crime (perspective criminal law policy in crime of corruption in indonesia) muhtar hadi wibowo muhtar hadi wibowo ikadin (indonesian advocates association), central java office  muhtaradvokat@gmail.com table of contents introduction …………………………………………………….. 214 money laundering and corporation: is the corporate can be subjected to crime? ……….……………... 217 urgency of corporate accountability arrangement in criminal law in indonesia ............... 225 corporate criminal liablity system ………………….. 227 implementation of law enforcement on money laundering cases involving companies …………… 228 conclusion ………………………………………………………… 234 reference ………….……………………………………………….. 235 copyright © 2018 by author(s) this work is licensed under a creative commons attributionsharealike 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. mailto:muhtaradvokat@gmail.com 214 muhtar hadi wibowo jils 3 (2) november 2018, 213-236 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on january 2018 approved on may 2018 published on november 2018 money laundering is a stand-alone crime, although money laundering is born from its original crime, such as corruption, but the anti-money laundering regime in almost all countries places money laundering as a crime independent of its original crime in the case of a money laundering probe. the purpose of this study is to describe and analyze criminal law policies in regulating corporate accountability for current money laundering, analyze the implementation in law enforcement against corporations engaging in money laundering, and establish a model of criminal law policy on corporate liability that commits a crime money laundering in the future. this research emphasized that criminal law policy in ordering corporate responsibility to money laundering crime has been regulated in money laundering criminal act. the money laundering act in indonesia has indeed accepted corporations as a subject of criminal law, there are several cases that indicate the involvement of corporations engaging in money laundering practices in indonesia but at the stage of settlement within the justice system there is not a single corporation that has been charged and sanctioned criminal. in line with the development of specific laws, corporations are categorized as subjects of criminal law. keywords: accountability, corporations, crime, money laundering how to cite (chicago manual style) wibowo, muhtar hadi. “corporate responsibility in money laundering crime (perspective criminal law policy in crime of corruption in indonesia)”, journal of indonesian legal studies (jils), 3 (2): 213-236. introduction any offense perpetrated by the offender, it is certain that the offender will attempt to remove any evidence that can be prosecuted to the maximum extent possible. similarly, perpetrators of crime in the economic field, the perpetrator always tries to hide the money of his crime so that it cannot be found by law enforcement officers. activities to conceal the origins of their crime proceeds by laundering the money, and things that are often done by 215 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils the perpetrators of this crime was difficult to prove, and known as money laundering. the number of cases concerning money laundering crimes is also happening in the country of indonesia. positivism paradigm itself explains about how the money laundering crime itself and handling of money laundering criminal who more and more many do the crime. the rules in the law are clearly regulated in money laundering crime. money laundering as an international dimension has a negative impact on the economy of a country. the crime of money laundering is not only done by individuals. the crime of money laundering is getting bigger and increasing considering the money laundering crime committed by the corporation. the principle of corporate liability was first stipulated in 1951 in the law on landfill, and is widely known in law/71/drt/1955 on economic crime. in the latest developments, other than as an agent, the corporation may also be held liable for a crime law no. 15 of 2002 on money laundering crime adopts this model. other legislation that also embraces this model include law no. 23 of 1997 on the environment, law no. 31 of 1999 jo law no. 20 of 2001 on corruption. then to reach and combat corporate crime related to the development of money laundering and its complexity, the amendment of law no. 15 of 2002 with the issuance of law no. 25 of 2003 and then law no. 8 of 2010. for example corruption cases that punish corporations ie corruption cases conducted by pt. giri jaladhi wana in pn banjarmasin, where the parties are making a profit in corruption cases and other corporations. attempts to ensnare corporations suspected of committing corruption resulted in decisions up to a permanent legal ruling despite most being rejected by the judges. the reason of the judges is none other than because the corporation requested for criminal responsibility is not subject to the indictment. in addition, money laundering cases involving corporations are money laundering cases by m. nazarudin. the kpk announced that the former treasurer of the democratic party was named a suspect in money laundering. according to kpk spokesman johan budi, the determination of this suspect is the development of an investigation of wisma atlet case, where nazaruddin became defendant. permai group owner is allegedly buying shares in pt garuda using funds derived from the crime of corruption project wisma atlet. to that end, kpk ensnare nazaruddin with article 12 letter a subsidair article 5 and article 11 of corruption eradication act and also article 3 or article 4 jo article 6 of law no. 8 of 2010 on prevention and eradication of money laundering crime. the legal entity or corporation is a supporting element of rights and obligations in which anything which according to law can have the same rights and duties as human beings (ali 1991: 4). corporate activity now exists to the detriment of humans and opens opportunities to be classified against unlawful acts, as in the civil code of book iii of chapter viii regulates the limited liability company and chapter xi provides for legal entities. through 216 muhtar hadi wibowo jils 3 (2) november 2018, 213-236 http://journal.unnes.ac.id/sju/index.php/jils legislation, corporations today are accepted as legal subjects and treated equally with other legal subjects, human (natural). thus corporations can act like humans in general (susanto 1995: 15). starting from the legal umbrella of law no. 8 year 2010 is the attention to the practice of money laundering in indonesia seems to increase, although previously there was a polemic about whether or not to immediately criminalize. the motivation to launder the proceeds of crime is at least because there are some concerns the perpetrators will deal with the tax officials, or will be prosecuted by law enforcement or even the proceeds of the crime will be confiscated. money laundering is a stand-alone crime, even though money laundering is born from its original crime, such as corruption, but the antimoney laundering regime in almost all countries places money laundering as a crime independent of its original crime in the case of a money laundering probe. so if the crime of origin is not proven then it does not preclude the legal process of money laundering crime. reksodiputro (2017) exemplifies article 480 of the criminal code of penalty as an analogy of money laundering. in the case of a penal offense, the legal process of a criminal act should not wait for an inkracht from the case of theft. corporate crime is one of the discourses that arise with the advancement of economic and technological activities. corporate crime is not a new item, but an old item that always changes packaging. no one can deny that the times and the progress of civilization and technology are accompanied by the development of crime and its complexity (lubis 2004). on the other hand, the applicable provisions of the penal code in indonesia have not been able to reach them and have always been missed to formulate them. corporations as subjects of criminal law are not recognized by the criminal code, this is because the criminal code is the legacy of the dutch colonial government that embraces the european continental system (civil law). continental european countries are lagging behind in regulating corporations as the subject of criminal law, when compared to common law countries, where in common law countries like britain, the united states and canada the development of corporate accountability has begun since the industrial revolution. as for the application of criminal liability in the corporation often encounters difficulties in the principle of law, especially regarding the principle of no grievance without error (geen straf zonder schuld) (marpaung 2005: 9) because the crime does not stand alone, the new crime is meaningful if there is criminal liability (abidin 1995: 260-266). criminal liability arises from an objective objection to a criminal offender who is eligible for a criminal offense for his actions. furthermore, in its development in indonesia in several criminal laws spread outside the criminal code regulates corporations as perpetrators of criminal acts and may be punished, for 217 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils example law no. 8 of 2010 on the eradication of money laundering crime discussed in this study. money laundering and corporation: is the corporate can be subjected to crime? the crime of money laundering is popularly described as an activity using or committing other acts on the proceeds of criminal acts often committed by organized crime or individuals who commit acts of corruption, narcotics trade and other criminal acts in order to conceal or obscure the origin derived from the proceeds of the crime so that it can be used as if it were legitimate money without being detected that the money came from illegal activities. the evil mode is growing. now, crime is not only done by individuals, but also corporations. however, the current criminal code does not regulate corporate criminal liability in the sense of not knowing corporation as the subject of a crime, therefore a formulation policy on special corporate criminal responsibility in this case regarding money laundering crime. this is what prompted the enactment of law no. 8 of 2010 on prevention and eradication of money laundering crime. the magnitude of the role of corporations in encouraging the implementation of money laundering process whether conducted by people in the corporation directly, or indirectly need to get serious attention from the government in this case law enforcement officers so that further can be prevented and eradicated. the difficulty of proving and identifying the involvement of corporate executives acting on their own behalf as well as acting on behalf of corporations is one of the obstacles to eradicating money laundering crimes committed by corporations. making learning from the various cases occurring in this country related to money laundering that turned out to involve corporations as a crime media, it is very necessary to clarify the content of money laundering law. the current legislative body in the formulation of corporate placements as legal subjects has a tendency to include high penalties (fines) in the hope of preventing corporations from committing a crime, a high threat it is intended for companies that commit criminal acts (in this case money laundering) losses for his actions, and indirectly will also affect the shareholders. furthermore, the principle that applies to the criminal law is actus non facit reum, nisi mens sit rea or no crime without error, otherwise known as doctrine of mens rea. this principle implies that only “something” has a state of mind (mens rea) that can be charged with criminal liability. since only humans have heart while corporations have no heart, then corporations cannot be burdened with criminal liability. however, in the development of criminal law, including the development of criminal law in indonesia, it has 218 muhtar hadi wibowo jils 3 (2) november 2018, 213-236 http://journal.unnes.ac.id/sju/index.php/jils been accepted that even corporations in themselves have no heart can also be held accountable to criminal responsibility (sjahdeini 2007: 78). the basis of accountability in corporations is not easy to find because corporations as subjects of crime do not have the psychological nature of human beings. however, the problem can be overcome if we accept the concept of functional functionality. this concept can be assumed that corporate behavior will always be a functional action. in this case, actors act in the context of a series of cooperation between people, through a particular organization. therefore, the principals are in principle responsible for the impacts that are strongly perceived to arise from the extension of their actions. (remmelink 2003: 107) responsibility is applicable in accounting for corporations in criminal law if the concept of functionale dader is acceptable. for the existence of the corporation is not formed without a purpose and in the achievement of corporate objectives are always manifested through the actions of natural man. therefore, the responsible capacity of persons acting for and on behalf of the corporation is transferred to the corporate responsibility as a criminal subject (setiyono 2002: 134) originally in indonesia there was only one legal subject, namely a person as the subject of law, the burden of the task of administering to a legal entity was to its board, the corporation was not a criminal law subject. this opinion then developed into the recognition that the corporation could become the perpetrator of the crime (mardjono 2004: 693) this is because the role of private business world, in its growth was more giving role to legal entity/corporation. corporations as subjects of criminal offenses are still new and the rapid influence of the rapid development of the national and international business world is one of the factors driving corporations to have a profound effect. the corporation's arrangement as a subject of criminal law is only contained in a special law outside the criminal code. therefore, my opinion, the formulation of corporations as the subject of criminal law should be explicitly regulated in book i of the criminal code so that it can be applied for all criminal acts that occur both criminal acts regulated in the criminal code as well as offenses set outside the criminal code. this can be found in the draft penal code (hereinafter abbreviated rkuhp) precisely in article 47 which states: “the corporation is the subject of a criminal offense” and article 182 stating that: “the corporation is an organized collection and of persons and/or wealth either an agency law or non-legal entity” (kristian 2013: 584). corporate criminal liability in indonesia is not known in general criminal law or is not contained in the criminal code. this is because the criminal code still uses the subject of his crime is a person not a corporation. however, along with the development of time leading to economic growth and technological progress in indonesia is regulated by special law, namely law no. 7 drt 1951 on economic crimes whereby this act expressly receives corporations as subject of criminal law. with the acceptance of the 219 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils corporation as a subject of criminal law, this means that there has been an extension of the notion of who is the perpetrator of a criminal offense (dader). (priyatno 2004: 8) the problem that then arises is in connection with corporate criminal liability, which according to barda nawawi arief argued that: for the existence of criminal responsibility must be clear in advance who can be accounted for. this means that it must be ensured in advance who is declared to be a maker for a specific offense. this issue concerns the subject of a criminal offense that is generally prepared by lawmakers for the criminal offense concerned. but in reality to ascertain who the maker is not easy. after that, how is the next about his criminal liability? this issue of criminal responsibility is another aspect of the subject of the offense that can be distinguished from the problem of the maker (who commits a criminal offense). this means that the understanding of the subject of criminal acts can include two things: who is doing the crime (the author) and who can be accounted for. in general, accountable in the penal law is the maker, but it is not always the case. this issue also depends on the method or formulation of accountability adopted by the legislator (arief 1992: 51). based on the above description of the issue of criminal liability, it turns out that the juridical constructions of all literature, on human-oriented criminal responsibility. this is understandable because the idea of criminal responsibility construction is based on the provisions of the criminal code. the criminal code, which is still in effect oriented to the subject of criminal offenses in the form of persons and not corporations. to determine the corporation's responsible ability as a subject of criminal offense, it is not easy because corporations as subjects of criminal offense do not have a psychological nature as well as natural human beings (natuurlijk person) (arief 1992: 51) the same thing was also expressed by reksodiputro (1994) who mentioned about the problem of corporate criminal liability, which according to him: the main principle in criminal liability is to be a schuld of the perpetrators. how must construct the fault of one corporation? the widely held doctrine today separates between its unlawful actions (according to criminal law) and its accountability under penal law. then this unlawful act is perpetrated by a corporation. it is now possible. but how do we consider accountability? can you imagine a corporation that there is an element of error (whether intentional or dolus or negligent or culpa)? in the circumstances of the 220 muhtar hadi wibowo jils 3 (2) november 2018, 213-236 http://journal.unnes.ac.id/sju/index.php/jils perpetrator is human, then this error is associated with reproach (verwijtbaarheid; blameworthiness) and therefore relates to the mentality or psyche of the offender. how only with non-human actors, in this case corporations? it is well known that corporations act or act through people (who can be administrators or others). so the first question is, how is the legal construction that the actions of the management (or others) can be expressed as unlawful corporations (according to the criminal law). and the second question is how the legal construction is that corporate actors can be declared to have errors and are therefore held accountable under criminal law. the second question becomes more difficult if it is understood that indonesian criminal law has a very basic principle that: “cannot be given a crime if there is no mistake” (in the sense of reproach) (reksodiputro, 1994: 102) in this regard, suprapto points out that he claims that corporations as well as humans have errors, but that mistake is a collective error (muladi and dwidja 2010: 105). such mistakes may be the knowledge and will of all corporations or the knowledge and common will of individuals acting for and on behalf of the corporation (bammelan 1984: 237). the corporation or legal entity in civil law is a human being created by law consisting of a collection of individuals. corporations may commit acts through such individuals acting for and on behalf of the corporation (roland 2000: 287). then comes the question of what mistakes can be considered a corporate fault? according to suprapto, van bammelen and jan remmelink the mistakes imposed on corporations are a mistake made by corporate executives (muladi and dwidja 2010: 105). this view comes from the view of civil law. in civil law there is a debate about whether a legal entity can commit acts against the law. the substance of propriety and justice in civil law accepts the view that actions taken by the board and legal entity must be accountable to the legal entity because the board acts on the rights and authority of the body the law (mardjono 1994: 107). within the scope of criminal law comes the development that states that not only the mistakes of corporate executives can be borne by the corporation but also the fault of the corporate employees (remmelink 2003: 108). furthermore, it should be the functional false offense that can be imposed on the corporation, thus, the legal entity in this case the corporation also cannot escape the mistakes made by the board. intentional (dolus) or negligence (culpa) from the board should be regarded as intentional and negligent from the legal entity itself (mardjono 1994: 107). speaking of corporate deliberation (dolus) to the corporation as remarked by remmelink (2003) that the shared knowledge of most members of the board of directors can be regarded as the intent of the legal entity, but further according to remmelink not only the deliberate actions of corporate leadership functionaries attributable to the corporation, but also the lowly employee action, he thinks that lowly employees at certain times and 221 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils occasions can also play a very important role, so that through such actions the corporation also fulfills the element of intent. whereas in the case of schaffmeister’s negligence assume that there is the same thing as deliberate that is done through people who are within the scope or corporate administrator, noting that by way of maintenance more negligence can be accounted for corporations (schaffmeister 2011: 270). sutan remy is of the opinion that corporations should be liable to criminal liability even if the corporation cannot perform its own deeds but through persons or persons conducting stewardship or corporate activities. the opinion is based on several reasons: a. firstly, even if the corporation in carrying out its activities does not do so on its own but through or by the person or persons who are the caretaker and its employees, but if the act is committed with the intent of providing benefits, in particular in the form of financial gain or even avoiding / or reducing financial loss for corporations concerned, it is unfair for the disadvantaged society either in the form of loss of life, bodily (causing physical disability), or material if the corporation does not have to be responsible for the actions of the board or its employees. b. secondly, it is not enough to impose criminal liability to the corporate commissioner on the offense because the board seldom has enough assets to be able to pay the penalty imposed on him for the social costs to be borne as a result of his actions. c. third, imposing criminal liability only to corporate executives is not enough to encourage precautionary measures, thereby reducing detainment goals from criminal prosecution. d. fourth, the imposition of criminal liability to the corporation will put the company's assets at risk with regard to the commanding acts of corporations (must carry a heavy fines penalty, the possibility of being seized by the state, etc.) that will encourage stockholders and corporate commissioners/supervisors to conduct stricter monitoring/supervision of policies and activities undertaken by the management (sjahdeini 2007: 57). several laws and regulations in indonesia since 1955 have indeed accepted corporations as the subject of criminal offenses, one of which is law no. 8 of 2010 concerning prevention and eradication of money laundering crime which is still valid until today. this shows the fact that the existing golden opportunity is not utilized by law enforcers, so coloring the criminal law, especially in its application is helpless facing corporate crime which is getting worse day. related to the crime of money laundering conducted by the corporation, its punishment is regulated in law number 8 year 2010 concerning prevention and eradication of money laundering article 6 paragraphs (1) and (2), article 7 paragraph (1) and (2) , article 8 and article 9 paragraph (1) and (2) are as follows: 222 muhtar hadi wibowo jils 3 (2) november 2018, 213-236 http://journal.unnes.ac.id/sju/index.php/jils article 6 (1) in the case of money laundering as referred to in article 3, article 4, and article 5 shall be conducted by the corporation, the penalty shall be imposed on the corporation and / or the controlling personnel of the corporations. (2) crime is imposed on the corporation if the crime of money laundering: a. conducted or ordered by the corporate controller personnel; b. done in the framework of fulfilling the purpose and objectives of the corporation; c. performed in accordance with the duties and functions of the perpetrator or the giver of the order; and d. conducted with the intention of providing benefits to the corporation. article 7 (1) the principal penalty imposed against the corporation shall be a fine of not more than rp100,000,000,000.00 (one hundred billion rupiahs). (2) in addition to the fine as referred to in paragraph (1), against the corporation may also be imposed additional criminal in the form of: a. announcement of judge's decision; b. freezing part or all of the business activities of the corporation c. revocation of business license; d. dissolution and / or prohibition of the corporation; e. appropriation of the corporation's assets to the state; and / or f. takeover of the corporation by the state. article 8 in the event that the convicted property is not sufficient to pay the fine as referred to in article 3, article 4, and article 5, the fine shall be replaced with a maximum imprisonment of 1 (one) year 4 (four) months. article 9 (1) in the event that the corporation is unable to pay the fine as referred to in article 7 paragraph (1), the fine shall be replaced by theft of the company's property or personnel of a corporate controller equal to the awarded fine. (2) in the event that the sale of the company's wealth-laid assets as referred to in paragraph (1) is insufficient, the imprisonment of substitute fines shall be imposed on the controlling person of the corporation by taking into account the fines already paid. in law number 8 year 2010 concerning prevention and eradication of money laundering crime enables the imposition of criminal sanction against corporation other than to corporate controlling personnel due to money laundering crime. article 6 paragraphs (1) and (2) and article 7 (1) and (2) clearly state that corporations can be criminals. 223 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils article 6 paragraph (1) stated that “in the case of money laundering as referred to in article 3, article 4, and article 5 shall be done by the corporation, the penalty shall be imposed on the corporation and / or the controlling personnel of the corporation”. the penalty that may be imposed on a corporation under article 6 paragraph (2) which reads, a criminal shall be imposed on corporation if money laundering: a. conducted or ordered by the corporate controller personnel; b. done in the framework of fulfilling the purpose and objectives of the corporation; c. performed in accordance with the duties and functions of the perpetrator or the giver of the order; and; d. done with the purpose of providing benefits to the corporation. what is the principal punishment that will be imposed on corporations let alone proven money laundering? article 7 paragraphs (1) and (2) affirms the corporation may be subject to fines and may even be imposed additional criminal than the announcement of a judge's decision until it is taken over by the state. article 7 paragraph (1) reads that the principal penalty imposed against the corporation is a fine at most rp.100.000.000.000 (one hundred billion rupiah). "the additional criminal may be imposed to the corporation in article 7 paragraph (2) which reads, in addition to the fine as referred to in paragraph (1), against the corporation may also be imposed criminal additional form of: a. announcement of judge's decision; b. freezing of part or all of the business activities of the corporation; c. revocation of business license; d. dissolution and/or ban of corporation; e. appropriation of corporate assets to the state; and/or f. takeover of the corporation by the state. even against corporations may also be subject to the company’s property deprivation to substitute a fine, as well as imprisonment in lieu of a fine to a corporate controlling person in the event that the company’s wealth-owned property is deprived of insufficient. article 9 paragraph (1) describes the seizure as follows: in the event that the corporation is unable to pay the fine as referred to in article 7 paragraph (1), the fine shall be replaced by theft of the company's property or personnel of the corporate controller equal to the criminal verdict fines imposed. then the imprisonment imposed on the corporations controlling personnel replaces the penitentiary of the corporation, article 9 paragraph (2) affirms, in the case of the sale of the company's wealth-laid property as referred to in paragraph (1) is not sufficient a substitute for a fine shall be imposed upon the controlling company personnel taking into account the fine already paid. furthermore, it relates to each individual and corporate person conducting activities, in order to conceal or disguise funds derived from proceeds of criminal offense and then placed into the financial system in order to make such funds as halal (clean money), or in this case active perpetrator is any individual both individuals and corporations that violate the provisions as stipulated in law no. 8 of 2010 on prevention and eradication of money laundering crimes in articles 3 and 4. 224 muhtar hadi wibowo jils 3 (2) november 2018, 213-236 http://journal.unnes.ac.id/sju/index.php/jils in general, the active perpetrator is a criminal or predicate crime (predicate crime). however, it is evolved that those classified as active perpetrators here are not only the main perpetrators or everyone who committed the predicate crime, but also those who assist or participate in committing the crime of money laundering by disguising or hiding the proceeds of the crime so that the origin of the fund is unknown and can turn into halal money (clean money), and this is as regulated in article 10 of the law no. 8 of 2010. the provisions of this article differ from those contained in the criminal code, and where in the criminal code the maximum penalty on the perpetrator of trial and assistance is the maximum principal penalty minus one third. such provisions do not apply to trials and assistance in committing the crime of money laundering because they are subject to the same penalties as the main perpetrators in articles 3, 4 and 5 of law no. 8 of 2010. money laundering process can be grouped into three stages of activity that is placement, layering and integration. in practice these three activities can occur separately or simultaneously, but are generally overlapped: 1. placement is the effort to place cash that comes from a criminal act into the financial system or efforts to place checks (checks, bank notes, certificate, deposits and others) back into the financial system, especially banking system. the forms of placement activities include: a. placing funds in the bank. sometimes this activity is followed by the submission of credit/financing. b. depositing money to financial service providers as credit payments to obscure audit trail (garnasih 2004: 39); c. smuggling cash from one country to another; d. finance a business that is legitimate or related to a legitimate business in the form of credit/financing, thereby turning cash into credit/financing; e. purchase valuable items of high value for personal use, buy valuable gifts as rewards to others whose payments are made through a financial service provider. 2. transfer (layering) is an effort to transfer assets derived from criminal acts (dirty money) which has been successfully placed on the financial service provider (especially banks) as a result of placement efforts to other financial service providers. with layering, it will be difficult for law enforcers to be able to know the origins of the property. at this stage the offender makes transactions obtained from illegal funds into highly complex and multi-layered and sequential transactions protected by various forms of anonymity for the purpose of concealing the source of the illicit money. the forms of this activity include: a. transfer of funds from one bank to other bank and or inter region/country; b. use of cash deposits as collateral to support legitimate transactions; 225 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils c. moving cross-border cash through a network of legitimate business activities or through a shell company. 3. using the wealth of wealth (integration) from illegal assets or money that is the effort to use property derived from criminal acts that have successfully entered into the financial system through placement or transfer so as to become a wealth of halal (clean money), for business activities which is lawful or to refinance criminal activities. some forms of this integration activity are: a. using assets that have seemed legitimate, whether to be enjoyed directly, invested in various forms of material and financial wealth. b. used to finance legitimate business activities, or c. refinance criminal activities. urgency of corporate accountability arrangement in criminal law in indonesia the crime of money laundering is not only can be done by individuals but also can be done by the corporation. indonesia as one of the developing countries in the world highlights the development and development of its economy to the private sector which is dominated by the corporation. therefore the relationship between money laundering and corporate crime is very close. the rapidly advancing technological developments also have an effect on money laundering, one of which is done by corporations can easily happen and produce huge amounts of wealth (amalia 2016: 387-388). corporations do have structures and a set of coherent properties that make it possible to say rational and autonomous agents (provided the agency is not uniquely understood to refer only to so-called “flesh-and-blood” favored by the philosophy of individualism). furthermore, based on the structural principle of nature only because of their group of corporations, that is, when all groups do corporations but only one person is caught the other will not intervene (soares 2013: 53). the theory of peter frence and pettit explained that corporate or group responsibilities are viewed as corporate or group responsibilities as autonomous moral persons. like frence and pettit, i would suggest that corporations are collective entities and not, for example, just individual atomistic collections. there is a difference between collectivity and the crowd, and corporations are among those former types. however, i am wary of the anthropomorphic characterization of its collective entity, and the conception of collectivity whose identity is detached from its constituent members (lee, 2011: 3). in the past people thought that “societa/university delinquere non potest” (legal entity / association cannot do crime) (muladi 2002: 157). but the development of evil says another, and with the acceptance of the functional daderschap concept, then corporations can commit crimes just like humans. 226 muhtar hadi wibowo jils 3 (2) november 2018, 213-236 http://journal.unnes.ac.id/sju/index.php/jils because corporations can commit crimes, it is unfair to continue to be followed by the societa/university delinquere non potest principle as embraced in the criminal code (penal code). therefore, in the recent legislation products have many who point the corporation as the subject of law, and can be accounted for if the crime (corporate crime). some of the laws that have incorporated corporations as legal subjects (as well as natural persons) include the law on environmental management (law no. 15 of 2002 jo law no. 25 year 2003), perpu terorisme (perpu no. 1 of 2002) which has become law through law no. 15 of 2003, law no. 21 of2007 on the eradication of the crime of trafficking in persons, and others. it is observed that the loss of corporate crime is much greater than the consequences of conventional crime. if in conventional crime such as murder, the victim inflicted at least one, two or only a few. but the “murder” committed by corporations is much greater. “murder” (in the form of death) may be done by the corporation, either caused by an accident (at the time of work) or the consequence of inadequate health insurance in the workplace, misstatement of food mixture (remember the case of “poisonous biscuits”) steven (1983) in masyhar (2008). in addition to these “killings”, corporations can actually commit other conventional crimes such as “theft” (corruption), advertising fraud, tax evasion, “rape” of labor rights, product testing manipulation and others. susanto (1995) analyzes the losses incurred by corporate crime may include economic/material losses, in the health/safety of the psyche, as well as social and moral losses. despite the enormous and widespread nature of the loss, corporate crime rarely comes to the fore in law enforcement. if there were, it could be counted on the fingers. this is because there has been no serious attention to corporate crime, the existence of a number of a fault of corporate governance in legislation, people lack understanding/know the types of corporate crime, and often harmed people do not feel that they have become victims of corporate crime. the public's ignorance of corporate crime-so that it does not perceive itself as a victim-is due in part to the ineffectiveness of corporate crime caused by the complexity of the act, the sophistication of the plan and its implementation, the absence or weakness of law enforcement, and the flexibility of legal sanctions and social sanctions against corporate crime susanto 1995: 23-24). the absence / weakness of legal sanctions may be in the absence of a regulation of a crime if committed by a corporation in legislation. in addition, the inadequacy of corporation arrangements in legislation is a disadvantage because it opens up the synthesizing rooms. to that end, to see the losses incurred, and the regulation of corporate criminal liability is that do not need to bargain. 227 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils corporate criminal liablity system with regard to the criminal responsibility system of the corporation, according to reksodiputro (1994) there are three forms of system starting from that the corporations as responsible makers and administrators, corporations as responsible makers and administrators, and corporations are as good as makers and are also responsible. according to sutan remy as quaoted by sjahdeini (2007), who added one system, according to him there are four possible charges of criminal liability to the corporation. the four possible systems are: a. corporations as perpetrators of criminal acts, therefore it is the board that must bear the criminal responsibility. b. corporations as perpetrators of criminal acts, but administrators who must bear criminal responsibility. c. the corporation as the perpetrator of the criminal act and the corporation itself must bear the criminal responsibility. d. board and corporation both as perpetrators of crime, and both also must bear the criminal liability. the criminal code embraces this first system. the criminal code is of the opinion that because the corporation can not commit itself an act which is a criminal offense and cannot have guilty mid (guilty mid), but who performs the act is a corporate officer who in doing the deed is based on the attitude of a certain heart in the absence of deliberate or deliberate, then the board of the corporation shall bear the criminal responsibility for the deeds even if the act is committed for and on behalf of the corporation he leads. in other words, the criminal code does not embrace the belief that corporations may be subject to criminal liability. however, it is not the case with the attitudes of various laws that adhere to criminal provisions outside the criminal code, or those also referred to in the law that regulate specific criminal acts. the act has taken a different attitude from the criminal code. the various laws stipulate that corporations may also be trafficked as offenders other than corporations who carry out such acts for and on behalf of the corporation. (sjahdeini 2007: 59) this system is in line with the development of corporations as the subject of criminal law stage i. where the compilers of the criminal code, still accept the principle of societas/university delinquere nonpotest (legal entities cannot commit a crime) .this principle actually applies in the past century on all continental europe. this is in line with individual criminal law opinions of the classical currents prevailing at that time and later also from the modern stream in criminal law (prayitno 2004: 53). that the subject of the crime is in accordance with the explanation (mvt) against article 59 of the criminal code, which reads: “a crime can only be committed by human” (setiyono 2002: 13). von savigny once put fiction theory, where corporations are legal subjects, but this is not recognized in criminal law, because the dutch government at that time was not willing to adopt the teachings of civil law into criminal law (hamzah 1996: 30). 228 muhtar hadi wibowo jils 3 (2) november 2018, 213-236 http://journal.unnes.ac.id/sju/index.php/jils the provisions of the criminal code which describe the acceptance of the principle of societas/university delinquere non-potest is the provision of article 59 of the criminal code. in this article also stipulated the reasons for the removal of the crime (strafuitsluitingsgrond) ie the board, committee or commissioner who did not interfere with the offense, not punished. this accountability system takes place outside the criminal code, as it is known that in criminal law scattered outside the criminal code, it is stipulated that the corporation may commit a crime, but the responsibility for it is charged to its board (e.g article 35 of law no. 3/1982 on obligation of company register). then there are other variations that are responsible for “those who give orders” and or “those who act as leaders” (article 4 paragraph (1) law no. 38/1960 on the use and stipulation of land size for certain plants). then there are other variations that are responsible: the management, legal entity, active ally, foundation administrator, representative or power in indonesia from companies domiciled outside indonesian territory, and those who deliberately lead the actions concerned (article 34 of law no. 2 of 1981 on legal metrology) (mardjono 1994: 70). in this system of responsibility there has been a shift in view, that corporations can be accounted for as makers, in addition to natural human beings (natuurlijke persoon). so the denial of corporal punishment based on the doctrine of societas/university delinquere non-potest, has undergone change by accepting the concept of functional performer (functioneeldaderschap) (setiyono, 2002: 16) so in this third system of accountability it is the beginning of direct accountability of the corporation. the things that can be justified that the corporation as a maker and simultaneously responsible. that’s because in various economic and fiscal crimes, the profits derived by the corporation or the losses suffered by the public can be so great that it would not be possible if the criminal is only imposed on the board only. secondly, by simply convicting the management only, no or no guarantee that the corporation will not repeat the criminal act anymore, by punishing the corporation with the type and weight according to the nature of the corporation, it is expected that the corporation can comply with the regulation concerned (setiyono, 2002: 15). implementation of law enforcement on money laundering cases involving companies the problem of law enforcement is defined as the problems arising from the enforcement of the rule of law in indonesia, although indonesia adheres to the principle of "state of law" in accordance with article 1 paragraph (3) of the 1945 constitution of 1945 as the constitutional foundation of the republic 229 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils of indonesia, but in fact law enforcement in indonesia this is often inconsistent with what is desired by lawmakers, law enforcers, and by society. this is marked by the increasing number of mistrust of society itself against the law, because it is because there are many realities that give the view to the public that the law is only a political tool or tool of power solely for the sake of a handful of political elites. the general problem of law enforcement in indonesia lies in 3 factors, namely the integrity of law enforcement officers, legal products, and the nonimplementation of pancasila values by law enforcement officers in the execution of their daily duties. against these factors, lawrence friedman suggests three indicators that serve as the basis for enforcement of law is structure, substance, and culture. lawrence m. friedman (2009: 73) provides a definition of these three indicators, namely: 1. structure, ie the whole existing legal institutions and their apparatus. 2. substance, namely the entire rule of law, legal norms and legal principles, both written and unwritten, including court decisions. 3. legal culture, namely opinions, beliefs, habits, ways of thinking, how to act, both from law enforcers themselves, as well as citizens of the society about the law and various phenomena associated with the law. it has been mentioned that law enforcement officials have difficulty in ensnaring corporations. investigators who conduct the initial examination process of the case have difficulty in determining the corporation as the perpetrator of the crime. this can be seen from the rare cases handled by the investigator by involving the corporation as a suspect (interview with sri as a police investigator). in addition, police investigators say, it is difficult to find evidence to ensnare corporations as perpetrators of criminal acts. in addition, in filling the identity of the perpetrator, regarding sex and religion, cannot be mentioned in the case of a corporate agent. one of the cases related to the implementation of law enforcement against corporations that commit money laundering crime is the case of pt. giri jaladhi wana at the banjarmasin district court. pt. giri jaladhi wana as a corporation in cooperation contract for business premises for the construction of antasari mother market based on letter of cooperation agreement no. 664/i/548/prog; number 003/gjw/vii/1998 dated july 14, 1998 between walikotamadya banjarmasin (first party) with defendant pt. giri jaladhi wana (second party), between 1998 and 2008, located at the mayor of banjarmasin street re martadinata no.1 banjarmasin and antasari sentra street at pangeran antasari banjarmasin or at least somewhere within the jurisdiction of the district court banjarmasin, has committed several acts which each of them constitutes a crime that is in such a relationship that must be regarded as a further unlawful act of enriching themselves or others or a corporation that may harm the state's finances or the economy of the country. 230 muhtar hadi wibowo jils 3 (2) november 2018, 213-236 http://journal.unnes.ac.id/sju/index.php/jils pt. giri jaladhi wana has enriched itself or others from the sale of shops, kiosks, stalls, stalls built without the permission of banjarmasin city government, management of antasari banjarmasin sentra market, and working capital credit facility received from pt. mandiri bank. due to the actions of the defendant pt. giri jaladhi wana has been detrimental to state finances cq. government of banjarmasin city rp. 7.332.361.516, (seven billion three hundred thirty two million three hundred sixty one thousand five hundred and sixteen rupiah) based on the case, st widagdo bin suraji sastro diwirjo as the president director of pt. giri jaladhi wana (defendant) by the district court of banjarmasin with its decision dated 18 december 2009 number: 908/pid.b/2008/pn.bjm. have been found guilty of committing a joint and continuing criminal act of corruption, and sentenced to 6 (six) years in prison and paying a substitute of rp.6.332.361.516, (six billion three hundred thirty two million three hundred sixty one thousand five hundred and sixteen rupiah), the verdict has been upheld by the high court of south kalimantan in banjarmasin dated 24 february 2009, number: 02/pid.sus/2009/pt.bjm, and the decision of the supreme court number: 936.k./pid .sus/2009 dated 25 may 2009 which rejected the appeal of the defendant stwidagdo bin suraji sastro diwirjo, so the verdict of the case has a permanent legal force. however, based on expert witnesses to the decision, which is filed as a responsible corporate crime, the corporation shall be subject to the conditions among others. 1. the criminal act is committed or ordered by the corporate personnel as well as within the organizational structure of the corporation having the position of being company’s director. 2. the crime shall be conducted in the framework of the intent and purpose of the corporation. 3. criminal acts shall be perpetrated by the perpetrator or by order of the order giver in the course of his duties in the corporation. 4. the crime is committed with the intention of providing benefits to the corporation. 5. the perpetrator or the giver of the order has no justified excuse or excuse to be exempt from criminal responsibility. if the activity is an intra vires activity, i.e an act consistent with the purposes and objectives of the corporation as specified in its articles of association, then the conduct of such management may be borne by the accountability of the corporation. based on this, st widagdobin suraji sastro diwirjo president director acting in this matter acting for and on behalf of pt. giri jaladhi wana (defendant), it is clear that the action st widagdo bin suraji sastro diwirjo in order corporate purposes and objectives and to provide benefits for the corporation that is pt. giri jaladhi wana (defendant). the replacement money already imposed in the decision of st widagdo bin suraji sastro diwirjo amounted to rp.7.650.143.645, and was 231 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils paid amounting to rp.6.332.361.516,-. thus there is still a shortfall or a difference in the loss of fines of rp.1.317.782.129, (one billion three hundred seventeen million seven hundred and eighty two thousand one hundred and twenty nine rupiah) this deficit is the burden and responsibility that must paid by the defendant, and it is in accordance with article 20 paragraph 7 of law number 31 year 1999 which has been amended and supplemented by law number 20 year 2001 stating that the principal punishment that can be imposed on a corporation is only a fine, with maximum penal provisions plus ⅓ (one third). based on the supreme court’s decision no. 127/pid.b/2010 /pt.bjm decides that the defendant is pt. giri jaladhi wana has proven legally and convincingly guilty of committing corrupt criminal acts and further criminal charges against defendant pt. giri jaladhi wana with a fine of rp.1.317.782.129, (one billion three hundred seventeen million seven hundred eighty two thousand one hundred twenty nine rupiah), and the addition of criminal in the form of pt.giri jaladhi wana temporary closure for 6 (six) months. based on cases that occur at pt. giri jaladhi wana it can be concluded that those responsible for money laundering crimes committed by corporations are corporations. forms of liability in the form of penalties aimed at the company or corporation concerned. initially the positive criminal law applicable in indonesia has not regulated the corporation as a subject of criminal law, because the criminal code only determines that the subject of criminal law is only an individual (natural). this is related to the formation of the criminal code which is influenced by the view that legal entities cannot be punished (hutauruk 2013: 2), because they are only considered as legal fictions and therefore do not have the moral values required to be criminally blamed (rifai 2014: 90). in line with the development of specific legislation, corporations are categorized as subjects of criminal law. corporate governance as the subject of criminal offenses can be classified into two regulatory categories: 1. who declares a corporation as a subject of a criminal offense, but its criminal liability shall be imposed on a member or manager of a corporation in which the provisions of laws and regulations according to the first category are included in article 19 of law number 1 year 1951 concerning statement of entry into law, working act of 1948 number 12 from ri for all indonesia; article 30 of law number 2 year 1951 concerning statement of accident of the 1947 accident law number 43 ri for all of indonesia; article 7 of law number 3 year 1951 concerning the declaration of the enactment of labor inspection act of 1948 number 23 from ri for all of indonesia; article 4 of law number 12 of the year 1951 on firearms; article 3 paragraph (2) and paragraph (3) of law number 3 of 1953 regarding opening of pharmacies; article 34 of law number 2 of 1981 concerning legal metrology; article 35 of law number 3 of 1982 concerning obligation of corporate registration; and 232 muhtar hadi wibowo jils 3 (2) november 2018, 213-236 http://journal.unnes.ac.id/sju/index.php/jils article 46 paragraph (2) of law number 7 of 1992 jo. act number 10 of 1998 concerning banking. 2. who declares the corporation as the subject of a criminal offense and expressly can be criminalized directly. legislation that places corporations as the subject of criminal offenses and directly accountable in criminal law, is set forth in article 15 paragraph (1) of law number 7 of the 1955 draft on investigation, prosecution and economic crime trial; article 1 sub-article 13, article 43, article 44, article 45, article 46 and article 47 of law number 38 of 2009 concerning post; article 20 paragraph (1) of law number 31 of 1999 jo. law number 20 of 2001 concerning the eradication of corruption; and article 1 point 9 and article 6 of law number 8 of 2010 concerning prevention and eradication of money laundering crime (priyatno 2004: 164). based on the observation of corporate criminal liability arrangement in various laws it can be concluded that the regulation pattern is very varied and does not have a standard pattern. there are no uniform and consistent corporate criminal laws regarding: 1) when a corporation commits a criminal offense and when it can be accounted for (some formulate and some do not); 2) who can be accounted for (some formulate and some do not); 3) types of sanctions (some of which govern the principal penalties, some are principal and additional penalties, and some are supplemented by disciplinary proceedings); 4) formulation of sanctions (some formulate alternatively, cumulative, and alternative-cumulative compilations); and 5) there is a penalty that substitutes penalties that are not paid by the corporation and some are not regulated (arief 2015: 188). corporate crime is very complex, in addition to its character as crime by powerful (strong crime) so that law enforcement must have extra and mental ability tough (muladi & sulistyani, 2013: 94). it is not easy for law enforcement agencies to establish corporations as legal subjects of criminal offenses and by judges successfully prosecuted. even if there is meaning is new and can be categorized as a progressive law enforcement action (suhariyanto, 2015: 202). however, more comprehensive and integral corporal criminal litigation efforts should be pursued to fill the legal void. however, the rules of institutional law enforcement. as has been done by the attorney general who issued the regulation of attorney general of the republic of indonesia number per-028 / a / ja / 10/2014 concerning guidelines for handling criminal cases with subjects of corporate law; and the supreme court that issued the supreme court regulation (perma) number 13 of 2016 on the procedures of criminal case handling by the corporations. the supreme court at the end of 2016 has issued perma no. 13 of 2016 on procedures for criminal case handling by the corporation. perma is issued with the consideration that many laws in indonesia govern corporations as the subject of accountable offenses, but cases with corporative 233 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils law subjects filed in criminal proceedings are still very limited. this is due to the procedures of corporation examination as perpetrator of criminal acts is still unclear. consideration perma is in sync with the background of the issuance of regulation of attorney general (perja) number per-028/a/ja/ 10/2014 date october 1, 2014 about guidance of criminal case handling subject to corporate law that is disclosure of case involving corporation as subject of crime still difficult to uncover given the complexity of its complexity. based on the above-mentioned laws and regulations, de jure corporation has been recognized as one of the legal subjects as well as the subject of natural law (natuuralijk person). for example, in article 1 subarticle 1 of law no. 31/1999 on eradication of corruption, it is stated that "corporations are organized and or organized wealth whether they are legal entities or non-legal entities". corporations that commit a crime are referred to as corporate crime. this is in accordance with the definition of corporate crime according to the black's law dictionary, which is criminal offense committed by the officers or employee (e.g price fixing, toxic waste dumping) often referred to as white collar crime. any offenses committed by and therefore are subject to the expense of an enterprise because the activities of its officers or employees (e.g pricing, toxic waste disposal) are often referred to as white-collar crime). in judge's research (2015: 15) the crime of money laundering (tppu) as a criminal act is a white-collar crimes which in the business law perspective, tppu becomes one business crime that has a very negative impact on the economic development of a a state which in turn can disrupt economic and business stability. in addition to the impacts of the economy and business, tppu has become a transnational organizational crime transnational / inter-state because it involves various non-criminal practices, whether the predicate crime on narcotics trade, corruption, illegal weapons trade, human trafficking, illegal mining, illegal logging and others, as well as tppu itself in various forms of tppu through the displacement, layering and integration of funds resulting from such crimes, making international cooperation in preventing and delimiting the tppu becomes a necessity. conclusion finally, it can be highlighted that the criminal law policy in ordering corporate responsibility for money laundering crimes has been regulated in the money laundering law. the indonesian money laundering act has indeed accepted the corporation as a criminal law subject. there are three forms of criminal responsibility system: 1) a corporation acting as an offender in which the corporation itself assumes criminal liability; 2) the corporation as the perpetrator and the corporation's controlling personnel (corporate 234 muhtar hadi wibowo jils 3 (2) november 2018, 213-236 http://journal.unnes.ac.id/sju/index.php/jils management) shall bear criminal responsibility; and 3) corporations together with corporate control personnel as perpetrators and both bear criminal liability. when the corporate board acts as an offender criminal, the burden of criminal liability is only charged to the corporate management only. reference abidin, andi zainal. asas-asas hukum pidana. bandung: alumni, 1995. ali, chaidir. badan hukum. bandung: alumni, 1991. arief, barda nawawi. 1992. masalah pemidanaan sehubungan dengan 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01, 2019 volume 4 issue 01 may 2019 jils 4 (1) 2019, pp. 45-72 issn (print) 2548-1584 issn (online) 2548-1592 penal policy on assets recovery on corruption cases in indonesia sugeng wahyudi sugeng wahyudi police of the republic of indonesia, central java regional police  sugengwahyudi@gmail.com table of contents introduction ………………………………………………….….. 47 long history of commitment on eradicating corruption in indonesia ………………………….……….… 51 politics of law on eradicating corruption ……… 53 politics of criminal law or penal policy ………… 55 theory of legal purpose: anaylsis of criminal law purpose ……………………………………………………….. 57 corruption in the context of criminal law enforcement ……………………………………………………… 60 strafrechtpolitiek on the assets recovery of corruption in indonesia: problems and challenges ………………………………………………………… 65 conclusion ………………………………………………………… 67 references …………………………………………………………. 68 10.15294/jils.v4i01.28224 copyright © 2019 by author(s) this work is licensed under a creative commons attributionsharealike 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. jils (journal of indonesian legal studies) mailto:sugengwahyudi@gmail.com 46 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 article info abstract submitted on january 2019 approved on march 2019 published on may 2019 corruption is an extraordinary crime whose impact on actions can undermine a country, corruption is increasingly becoming increasingly common. even though not a few of the former state officials or state officials until all the villages have felt how fierce the law enforcers, especially the kpk arrested them all, either hand-grabbing operations or the development of public reporting, impressed by them all were endless corruptors kept appearing , law enforcement in this modern era is not only concerned with prosecution and prevention, in this case corruption is regulated by the return of state losses as asset recovery, which in turn will maximize the return of state losses from corruptors. as for the problems of this study are: 1. why is the politics of criminal law (strafrechtpolitiek) in the framework of restoring state losses not significant with the real state losses due to criminal acts of corruption? 2. how is the politics of criminal law ideally (strafrechtpolitiek) implemented so that the maximum return on state losses due to corruption? the benefits of research consist of theoretical benefits and practical benefits. theoretical benefits are expected to contribute to theoretical thinking in criminal law, especially concerning the politics of criminal law in the context of eradicating criminal acts of corruption. practical benefits are expected to be able to provide information scientifically to the public both in general and specifically. this study uses a descriptive legal approach that is supported by primary, secondary and tertiary data obtained from documentation and literature studies then analysed using qualitative descriptive analysis methods. the results showed that the politics of criminal law in the framework of returning state losses due to corruption in indonesia was not maximal, as evidenced by the lack of maximum or no maximum return on state losses for corruption, therefore recommendations on simplifying regulations in terms of early prevention or since in the beginning of corruption cases which caused a lot of damage to the state's financial need, there was a special formulation so that the handling could be maximized to restore state losses in corruption. keywords: corruption, state losses, penal policy, policts of law, assets recovery how to cite (chicago manual style) wahyudi, sugeng. “penal policy on assets recovery on corruption cases in indonesia”, jils (journal of indonesian legal studies), 4 (1), 2019: 45-72 47 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 introduction corruption is an extraordinary crime whose impact on actions can undermine a country, corruption is increasingly becoming increasingly common. even though not a few of the former state officials or state officials until all the villages have felt how fierce the law enforcers, especially the kpk arrested them all, either hand-grabbing operations or the development of public reporting, impressed by them all were endless corruptors kept appearing . law enforcement in this modern era is not only concerned with prosecuting prevention as well as in prevention, in this case corruption is regulated as a return on state losses as asset recovery, which in turn will maximize the return of state losses from corruptors (nashriana 2010). the politics of criminal law in the framework of returning state losses due to criminal acts of corruption needs to be stressed so as not to get out of its main goal, namely to save state money from criminal acts of corruption, article 18 of law no. 31 of 1999 has explained all that, the article is still relevant to the reality that exists today. article 18 of law number 31 of 1999 concerning eradication of corruption crime states: (1) in addition to additional criminal offenses as referred to in the criminal code, as additional crimes are: 1. seizure of tangible or intangible movable or immovable property used for or obtained from criminal acts of corruption, including convicted companies where corruption is committed, as well as from goods replacing these items; 2. payment of as much as possible substitute money with property obtained from criminal acts of corruption. 3. closure of the whole or part of the company for a maximum of 1 (one) year; 4. revocation of all or part of certain rights or the elimination of all or part of certain benefits, which have been or can be given by the government to the convicted person. (2) if the convict does not pay the replacement money as referred to in paragraph (1) letter b no later than 1 (one) month after the court decision has obtained permanent legal force, then the prosecutor can confiscate his property and be auctioned to cover the replacement money. 48 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 (3) in the event that the convict does not have sufficient assets to pay the replacement money as referred to in paragraph (1) letter b, then the sentence of imprisonment that does not exceed the maximum threat of the principal is in accordance with the provisions in this law and the duration of the sentence has been determined in court decisions. state losses due to corruption are a consideration mainly from the existence of the law on the eradication of criminal acts of corruption. in considering the letter (a) and letter (b) of law no. 31 of 1999 concerning eradication of corruption crime, affirmed: a. that corruption is very detrimental to state finances or the country's economy and hampers national development, so it must be eradicated in order to create a just and prosperous society based on pancasila and the 1945 constitution. b. b. that the consequences of criminal acts of corruption that have occurred so far in addition to harming the state's finances or the country's economy, also hamper the growth and sustainability of national development which demands high efficiency. the law on eradicating corruption crime implies 2 (two) things. first, that the presence of the law to eradicate corruption is in the context of safeguarding it in the state financial management, there is no loss of state money due to corruption. second, if there is a criminal act of corruption that is detrimental to state finances, then in order not to have an effect on economic growth and the continuity of national development, the state (through the criminal justice system) is given the authority to claim state losses from perpetrators of corruption. in accordance with the predicate given to corruption as an extraordinary crime, achieving the goal (political) of criminal law so that there is no state loss if corruption occurs, it is not easy. since corruption was regulated separately as a special offense outside the criminal code in 1957 (1957 was recorded as the era of enactment of the military regulations from 1957 to 1958. initially corruption was regulated in the criminal code, with the development of the situation corruption was specifically regulated in law its own law), following law no.24/prp/1960 concerning investigation, prosecution and corruption criminal investigation, law no. 3 of 1971 concerning the eradication of corruption crime, and finally law no. 31 of 1999 concerning eradication of corruption crimes amended by law no. 20 49 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 of 2001 concerning changes to law no. 31 of 1999 which is still valid; the return of state losses due to corruption has never been maximized. changes after changes to the regulation of criminal acts of corruption in addition to marking the sincerity and determination of the indonesian people to eradicate corruption is not a crime, also marking efforts to improve the substance of the regulation against corruption in order to be empowered to save a qualified state finances, for example, regarding interpretations or terminology of corruption, elements against the law and types of criminal sanctions. law no. 31 of 1999 concerning eradication of corruption crime formulates the terminology of corruption as: ... actions enriching oneself or others or corporations against the law (wederrechtelijkeheid) in formal terms (formale wederrechtelijkeheid) and material (materiel wederrechtelijkeheid). the meaning of resisting formal or material law is that even if the act is not regulated in the laws and regulations, but if it is deemed despicable because it is not in accordance with the sense of justice or norms of social life in society, then it can be punished. in this provision the word “can” before the phrase "detrimental to state finances or the economy of the country" indicates that the crime of corruption is a formal offense, namely the existence of corruption is enough to fulfill the elements of action that have been formulated not with the emergence of consequences (prayudi 2007). for the types of criminal sanctions the law on eradicating corruption crime is considered to be preparing very heavy criminal sanctions, ranging from capital punishment, additional criminal penalties as referred to in the criminal procedure code and article 18 of law no. 31 of 1999. in practice, the application of article 18 of law no. 31 of 1999 is still very rare. social facts around the return of state finances through the application of additional criminal penalties are fairly minimal. therefore it is also quite understandable if the return of state losses is not/has not been directly proportional to the amount of state losses caused by criminal acts of corruption. in addition to these social facts, there are quite a number of empirical facts and legal facts related to the maximum returns on state finances in practice so far. an example of the 2014 corruption eradication trend, the total state loss for 2014 for alleged corruption cases which were under investigation was rp. 5.29 trillion, while the return on state finances for the first semester of 2015 is only 9% (nine percent). furthermore, indonesian corruption watch (icw) released the refund of state losses for the first semester of 2015 as follows: the total state loss during the first semester of 2015 due to corruption was rp. 691,772 billion out of 161 cases, but those who were decided to pay for replacement money were only rp. 63,175 billion, out of 161 cases found in the value of state losses, only 99 cases were decided to pay substitute money. of the 193 cases and 50 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 230 defendants who were tried in the corruption court, at least 185 defendants were required to pay a fine with varying amounts. in addition to the state losses, indonesia corruption watch also indicated that arrears in alleged corruption cases at the high prosecutor's office and regional police with an accumulative state loss of at least rp. 5.16 trillion during 2010-2014. icw also emphasized the condition of corruption cases in indonesia, as follows: icw found that at least ten high prosecutor’s office (kejaksaan tinggi, kejati) which also oversee the district attorney general’s offic and have dozens of cases of alleged corruption that are stagnant at the investigation level and with state losses of tens to hundreds of billions. the area is east java (64 cases, rp. 269 billion); south sulawesi (56 cases, rp. 97 billion); north sumatra (51 cases, rp. 1.28 trillion); west java (46 cases, rp. 325 billion); nad (46 cases, rp. 338 billion), riau (45 cases, rp1.5 trillion); ntt (40 cases, rp. 609 billion); jambi (39 cases, rp. 64 billion); maluku (34 cases, rp. 36 billion); and central java (29 cases, rp. 111 billion). while the regional police, which also oversees the resort police, has at least ten areas that are stagnant in handling cases of alleged corruption with state losses from tens to hundreds of billions. the area includes north sumatra (30 cases, rp. 94 billion); east java (22 cases, rp. 14.8 billion); nad (21 cases, rp. 133 billion); south sulawesi (18 cases, rp. 34 billion); central java (16 cases, rp.22 billion); bengkulu (15 cases, rp. 15 billion); west java (15 cases, rp. 15 billion); east kalimantan (11 cases, rp.122 billion); ntt (11 cases, rp. 7.5 billion) and north sulawesi (11 cases, rp. 42 billion). regarding the success of returning state losses, for example in the period of 2014, the state money saved by the kpk reached rp 2.8 trillion. this figure far surpasses that saved by the indonesian police, which is only rp. 67.7 billion and the attorney general's office is rp. 792 billion. when compared to the mode of corruption in indonesia, the success of the return on state finances mentioned above is not significant. as shown in table 1 the mode of corruption which ranks first (80.63%) is a mode of harming state finances and / or misusing authority, following bribes (15.63%) and embezzlement in positions and gratuities of 1.25% respectively. 51 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 the above figures show that politics or the objectives to be achieved by criminal law (especially the law on the eradication of corruption crime) has not been significant enough, if not wanted to be said to fail to restore state finances. the ratio between the real losses of the country and those that were successfully returned is still very far away. the condition is further exacerbated by the performance of kpk corruption investigations which have been declining lately. in the period of 2010-2014, the kpk on average investigated 15 corruption cases with a state loss of rp. 1.1 trillion. but in the first semester of 2015, the kpk only investigated 10 corruption cases with state losses and bribes of rp. 106.4 billion (makawimbang 2014). the decline in the performance of kpk investigations in the first semester of 2015 occurred because this institution experienced a very strong counter-attack this semester. the attacks included the criminalization of leaders and investigators, pretrial, terror and revision of the kpk law. this counterattack has changed the constellation, psychology and motivation of all levels of the kpk so that it has an impact on the ability of the investigation. long history of commitment on eradicating corruption in indonesia the long history of the commitment to eradicating corruption is an important milestone in the governance of a country. in indonesia, almost every election of the head of state does not escape the seriousness of looking at what commitments are given by prospective heads of state to eradicate corruption. inevitably this happens because corruption continues to erode people's rights to state wealth. abundant state wealth, almost nothing left for people‟s welfare. commitment to eradicating corruption is indeed hard to do. various efforts to eradicate corruption are proclaimed in each period of the country's administration. some references state that juridical corruption eradication only began in 1957, with the issuance of military rulers regulation number prt/pm/06/1957. the regulation known as the regulation on eradicating corruption was made by the military authorities at that time, namely the army and navy military rulers. the government issued presidential decree no.28 of 1967 concerning the establishment of the corruption eradication team. in its implementation, the team cannot eradicate corruption to the maximum, it can even be said to be almost non-functioning. this regulation even triggered various forms of protest and demonstration starting in 1969 and its peak in 1970 which was then marked by the establishment of commission iv which was tasked with analyzing problems in the bureaucracy and issuing recommendations to overcome them. 52 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 the new order was arguably the most issued regulation because the new order period was quite long. but unfortunately there are not many regulations made that are effective and make corruption slightly reduced from the indonesian earth. continuing his speech on indonesian independence day on august 17, 1970, the soeharto government issued law no.3 of 1971 concerning the eradication of corruption crimes. this rule imposes maximum life imprisonment and a maximum fine of rp. 30 million for all offenses categorized as corruption. complementing the law, the state documents of the general guidelines for state policy (gbhn) which contain one of them are the willingness of the people to eradicate corruption. however, the implementation of the gbhn was leaked because the state management was characterized by a lot of state budget fraud and leakage in all sectors without any control at all. state organs such as parliament which have a supervisory function are weakened. the dpr‟s budget is determined by the government so there is no oversight function. the judiciary was made similar by the new order regime, so that there was no power left to be able to prosecute corruption cases independently. the strength of civil society was spelled out, the new order authorities slowly limited the movement of society and intervened to maintain their power. the following are some of the regulations that were issued in the new order era relating to eradicating corruption: 1. 1973 gbhn concerning development of authority and clean apparatus in state management; 2. the 1978 gbhn concerning policies and measures in order to control state apparatuses from problems in corruption, abuse of authority, leakage and waste of state‟s wealth and finance, illegal levies and various other types of misappropriation that inhibit development implementation; 3. law no.3 of 1971 concerning corruption crime; 4. presidential decree no. 52 of 1971 concerning tax reporting of officials and civil servants; 5. presidential instruction number 9 of 1977 concerning operation of control; and 6. law number 11 of 1980 concerning bribery crimes. the long journey to eradicate corruption is like getting a fresh breeze when a state institution emerges that has clear duties and authority to eradicate corruption. although previously, this was said to have been missed from the agenda mandated by the provisions of article 43 of law number 31 year 1999 as amended by law number 20 year 2001, the discussion of the kpk bill could be said to be a form of government seriousness in eradicating corruption. the delay in the discussion of the bill was motivated by many reasons. first, changes in the constitution of money implicate in changes to the constitutional map. second, legislative heavy tendencies in the dpr. 53 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 third, the tyrannical tendency of the dpr. the delay in the discussion of the kpk bill was also caused by an internal problem that hit the political system in indonesia in the reform era. politics of law on eradicating corruption law is a very complex entity, including a pluralistic reality of society, has many aspects, dimensions, and phases (sidharta 1999). when likened to an object it is like a gem, which each slice and angle will give a different impression to everyone who sees or looks at it. departing from the complexity of the law, since ancient greece, law has always attracted attention and become a discourse that is constantly debated among scholars. the complexity of the law causes the law to be learned from various perspectives (rahardjo 1991). the birth of various legal disciplines in addition to legal philosophy (philosophy of law) and legal science (science of law), such as legal theory (theory of law), legal history (history of law), legal sociology (sociology of law), legal anthropology (anthropology of law), comparative law (comparative of law), legal logic (logic of law), legal psychology (psychology of law), and now growing legal politics (politic of law), are irrefutable proof of the truth of statements in above (machmudin 2001). the history of the emergence of legal politics, inevitably, we will talk about the background, when, where, and who initiated this discipline for the first time. to answer that question is not easy because the supporting literature is very minimal, we might say there is nothing (rahardjo 1991). even if there is one, it is very limited and only seems to be explained at a glance, so that at a certain level, our knowledge of the historical aspects of legal political discipline is very limited. satjipto rahardjo explained, in the 19th century in europe and america (rahardjo 1985), individuals were the center of legal regulation, while the highly developed legal field was civil law (material rights, contracts, illegal acts). legal expertise is determined by technical skills or craftsmanship (legal craftsmanship) (ali 2002). people also feel that by treating the law above, by assuming law as an institution and an independent force in society, then the attitude that all can be fulfilled by themselves is complete. law, legal discipline, legal analysis methods, all do not need help and cooperation with other disciplines. normative and dogmatic analysis is the only way that is considered to be the most adequate and no other method and approach is needed to assist with legal assessment. such normative and dogmatic methods are considered self-sufficient, while law is increasingly becoming an esoteric field (rahardjo 2000). such circumstances and developments, of course, relate to the increasingly important role of the law in supporting and securing the progress of society as mentioned above, as well as greater trust in the law. 54 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 the atmosphere immediately becomes different, when the ways of looking at and working on such a law are faced with changes that occur in society due to the success of modernization and industrialization. the individual's position now begins to be rivaled by the appearance of other subjects, such as community, collectivity, and country. the fields which later became more prominent were public law, administrative law, socio-economic law. a new understanding emerged which essentially sued the establishment of the technical skills mentioned above, and replaced it with “planning”, “legal experts as social architects”, and so on. now law is no longer seen as an autonomous and independent matter, but is understood functionally and seen as always interdependent in relation to other fields in society (rahardjo 2009). it is necessary to be fully aware of the legal reviewers in indonesia that the various legal terms currently used in legal literature in indonesia are adopted from various legal terms contained in the tradition of dutch law, such as constitutional law (staatrecht), civil law (privaatrecht), criminal law (straafrecht), and administrative law (administratiefrecht) (wignjosoebroto 2014; thalib 1987; soehino 1984; kansil 1992). the same thing applies to the term legal politics. etymologically, the term legal politics is an indonesian translation of the dutch legal term rechtitolek, which is a form of the word recht and politiek. this term should not be confused with terms that appear behind, politiekrecht or political law, which was proposed by hence van maarseveen because both have different connotations. the latter term relates to another term offered by hence van maarseveen to replace the terms of constitutional law. for this purpose he wrote an essay entitled “politiekrecht, als opvolger van het staatrecht”. the term rechtspolitiek, in indonesian the word recht means law. the law itself comes from arabic hukm (plural words ahkam), which means judgment (judgment, verdict, decision), provision, command, government, power (authority, power), punishment (sentence), and others (wehr 1980). the verb comes from the arabic hakama-yahkumu, meaning to decide, judge, establish, order, govern, punish, control, and so on. the origin of the word hakama means controlling with one control (mas‟ud 1992). in connection with this term, until now, there has been no unity of opinion among the legal theorists about what the actual legal boundaries are. the etymological explanation above is certainly not satisfying because it is still so simple, that in many ways it can confuse our understanding of what constitutes legal politics. some definition of legal politics is formulated by several legal experts who have so far been sufficient to observe the development of these disciplines. wahjono (1986) emphasized that political law (or politics of law) is a policy of state administration that is fundamental in determining the direction, form and content of the law to be formed and about what is used as a criterion to punish something. thus according to padmo wahjono, legal politics is related to applicable law in the future (ius conctituandem). 55 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 tueku mohammad radhie, stated that political law is a statement of the will of the state authorities regarding the laws that apply in their territory, and concerning the direction of legal development built (radhie 1973). the definition of legal politics formulated by radhie seems to have two interrelated and continuous face, ius constituendum and ius contitutum. meanwhile, soedarto (1986) considered that political law is the policy of the state through state agencies that are authorized to determine the desired regulations, which are expected to be used to express what is contained in society and to achieve what is aspired (soedarto 1979). in another book, it is explained that legal politics is an attempt to realize rules that are good with circumstances and situations at a time (soedarto 1986). the complexity of politics of law as described by rahardjo (1991), and for instance, emphasized that politics of law as an activity to choose and the way to be used to achieve a certain social and legal goals in society (rahardjo 1991). according to satjipto rahardjo, there are several fundamental questions that arise in the study of legal politics, namely: a. what goals are to be achieved with the existing legal system; b. ways and which ones, which are considered the best for being able to achieve these goals; c. when the law needs to be changed and through the ways in which the change should be carried out; and d. can a standard and established pattern be formulated, which can help us decide on the process of selecting goals and ways to achieve these goals well (rahardjo 1991). sunaryati hartono recognized that legal politics as a tool or means and steps that can be used by the government to create the desired national legal system and with the national legal system the ideals of the indonesian people will be realized (hartono 1991). the statement “creating the desired national legal system” implies that the legal political framework according to sunaryati hartono is more focused on the legal dimension that applies in the future or ius constituendum. the same thing was stated by garuda nusantara (1985) that politics of national law can literally be interpreted as a legal policy (legal policy) that would be applied or implemented nationally by a certain state government. politics of criminal law or penal policy the term “politics of criminal law” in this paper is taken from the term policy (uk) or politiek (netherlands). therefore, the term “criminal law politics” can also be referred to as “criminal law policy” or “penal policy”. in many literatures, the political term of criminal law is often known by various terms, including political reasoning, criminal policy or strafrechtspolitiek. many legal scholars emphasized and described some 56 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 definition and limitation of politics of criminal law or penal policy (marpaung 2005) marcx ancel stated that penal policy is a science as well as art which in the end has a practical purpose to enable positive law regulations to be better formulated and to provide guidance not only to legislators, but also to courts that apply laws and also to organizers or implementers court decision (nawawi arief 2011). meanwhile, mulder (1980) as quoted by nawawi arief (2011) emphasized that strafrechtspolitiek is a policy line to determine: (1) how far the applicable criminal provisions need to be amended or updated; (2) what can be done to prevent criminal acts; and (3) the way in which investigations, prosecutions, trials and implementation of criminal acts must be carried out. soerjono soekanto stated that the politics of criminal law basically includes the act of choosing values and applying those values in reality. politics to prevent delinquency and crime: in other words, the politics of criminal law is an attempt to rationally organize rational social reactions to organize social reactions to delinquency and crime (nawawi arief 1991). besides some of the meanings stated above, the notion of political criminal law can also be expressed based on the notion of criminal politics. criminal politics is a rational effort to overcome crime. the politics of criminal law manifests in the form of penal (criminal law) and non-penal (without criminal law). thus, as part of criminal politics, criminal law politics can be interpreted as “a rational effort to combat crime by using criminal law”. starting from several descriptions of the political understanding of criminal law stated above, it can generally be stated, that the politics of criminal law is “an attempt to overcome crime through rational criminal law enforcement, which is to fulfill a sense of justice and usability”. as stated above, the politics of criminal law is one of the efforts to overcome crime, manifesting it in the form of rational criminal law enforcement. there are three stages in criminal law enforcement, namely: 1. formulation stage the formulation stage is the stage of enforcement of in abstracto criminal law by the legislature. in this stage, lawmakers carry out activities to select values that are in accordance with the current situation and situation that is to come. then formulate it in the form of criminal legislation to achieve the results of criminal legislation which is best in the sense of meeting the requirements of justice and usability. this stage can also be called the legislative policy stage. 2. application stage the application stage is the stage of criminal law enforcement (the stage of applying criminal law) by law enforcement officials from the police to the court. in this stage law enforcement officers have the duty to uphold and implement criminal laws that have been made by law makers. in carrying out this task, law enforcement officers must cling to the values 57 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 of justice and usability. this second stage can also be referred to as the judicial policy stage. 3. execution stage execution stage is the stage of enforcement (implementation) of criminal law in a concrete manner by officers implementing criminal law. in this stage the criminal implementing apparatus is tasked with upholding criminal legislation that has been made by law makers through the application of the criminal stipulated in the court ruling. in carrying out the punishment that has been determined in the court decision, the executing officers of this criminal conduct in carrying out their duties must be guided by criminal legislation made by legislators and values of justice and usability. the three stages of enforcement of criminal law, seen as a rational effort or process that is intentionally planned to achieve a certain goal, clearly must be a chain of unbroken activities that derive from values and lead to criminal and criminal punishment. starting from the description above, it can be stated that the enforcement of a rational criminal law as a manifestation of the politics of criminal law involves at least three interrelated factors, namely the enforcement of criminal law, criminal values and laws (legislation). the division of these three factors can be attributed to the division of the three components of the legal system, namely legal substance, legal structure, and legal culture (friedman 2009). theory of legal purpose: anaylsis of criminal law purposes gustav radbruch is a legal philosopher and a prominent legal scholar from germany who teaches the concept of three basic legal elements. he stated these three basic concepts during the world war ii era. the legal objectives stated by various experts are also identified as legal objectives. the three objectives of the law are justice, certainty, and benefit (is sadi 2017). 1. justice in justice there are philosophical aspects namely legal norms, values, justice, morals, and ethics. law as the bearer of the value of justice, the value of justice is also the basis of the law as law. justice has a normative and constitutive nature for the law. justice is a legal moral basis and at the same time a benchmark for a positive legal system and without justice, a rule does not deserve to be a law. furthermore, nigel walker (1969) emphasized that the concept of justice—retributive justice, especially in criminal law—, divided into two types, namely: (1) pure retributive theory, which argues that 58 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 the criminal must be suitable or commensurate with the mistakes of the maker and (2) adherents retributive theory is not pure (with modification) which is divided into two types, namely: (1) limited retributive theory (the limiting retributivist) which argues that the criminal does not have to match / match the error, except that it should not exceed the appropriate / equal limit with the defendant's fault, and (2) distributive (retribution in-distribution) retributive theory, abbreviated as the “distributive” theory which argues that the criminal should not be imposed on innocent people, but the criminal does not have to be matched and limited by mistakes. the principle of “geen straf zonder schuld”, no criminal without error, is respected, but it is possible for an exception for example in terms of strict liability. muchsin (2004) explains that justice is one of the objectives of the law apart from the certainty of the law itself and also the benefits of the law, while the meaning of justice itself is still a debate. but justice is related to the equitable distribution of rights and obligations. thus the central and dominant position and role of the value of justice for the law, so gustav radbruch stated “rechct ist wille zur gerechtigkeit” (law is the will for justice) (sisworo on putra 2016) whereas soeyono koesoemo sisworo as quoted by putra (2016) defines justice as an inner and outward balance that gives possibility and protection to the presence and development of truth that has a climate of tolerance and freedom. furthermore, the law does not exist for self and its own needs but for humans, especially human happiness. the law has no purpose in itself. law is a tool to uphold justice and create social welfare. without justice as its ultimate goal, the law will fall into a means of justifying the arbitrariness of the majority or the authorities against the minority or the controlled party. that is why the main function of the law is ultimately to uphold justice. justice is one of the most discussed purposes of law throughout the course of the history of legal philosophy. the purpose of the law is not only justice, but also legal certainty and the benefit of the law. ideally, the law does have to accommodate all three. judges‟ decisions, for example, are as much as possible the result of all three. even so, there are still those who argue that among the three objectives of the law, justice is the most important legal goal, and some even argue that justice is the only legal goal. in relation to this, plato (428-348 bc) as quoted by schmandt, et.al (2005) once stated that the ideal state if it is based on justice and justice for him is balance and harmony. harmony here means that the community lives in line and harmonizes with the goals of the country (policy), where each citizen lives well according to their nature and social position. but on the other hand, critical thinking views justice as nothing but a mirage, like people seeing a sky that seems to be visible, but never reaching it, even never approaching it. however, it must be acknowledged that arbitrariness will occur without justice. actually justice and truth are the most important virtues, so these values cannot be exchanged for any value. in terms of this ethical theory, legal justice is prioritized by 59 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 reducing the legal certainty and benefit of the law, such as a pendulum (pendulum) hour. prioritizing legal justice, it will have an impact on the lack of legal certainty and benefit of the law, and vice versa. 2. certainty legal certainty is the certainty of laws or regulations, all kinds of methods, methods, etc. must be based on laws or regulations. in legal certainty there is a positive law and written law. written law written by an authorized institution, has strict sanctions, is legitimately marked by the announcement in state institutions. legal certainty is a question that can only be answered in a normative, not sociological manner. normative legal certainty is when a rule is made and promulgated with certainty because it regulates clearly and logically. obviously in the sense that it does not cause doubt (multiinterpretation) and is logical in the sense that it becomes a norm system with other norms so that it does not clash or cause norm conflicts. the norm conflict caused by uncertainty in rules can be in the form of norm contestation, norm reduction or norm distortion. mainstream thinking assumes that legal certainty is a condition where human behavior, both individuals, groups, and organizations, is bound and within the corridor that has been outlined by the rule of law. ethically, this view is born of concern that thomas hobbes once said that humans are wolves for other humans (homo homini lupus). humans are violent beings who are a threat. for this reason, birth law is a guideline to avoid falling victims. then the influence of francis bacon's thinking in europe on law in the nineteenth century appeared in the law and order approach. one view in this law likens that between normative laws (regulations) can be filled with order which means sociological. since then, humans have become a component of machineshaped laws that are rational and quantitatively measured from the punishments that occur because of their violations. so, it can be understood that legal certainty is the certainty of the rule of law, not the certainty of actions against or actions that are in accordance with the rule of law. because the sense of legal certainty is not able to truly describe the certainty of behavior towards the law. 3. benefits the work of law in the community is effective or not. in the value of benefits, the law serves as a tool for photographing community phenomena or social reality. law also should provide benefits or utility for the community. the followers of the utility community consider that the purpose of the law is solely to provide the maximum benefit or happiness for as many people as possible. the handling is based on social philosophy stated that every citizen seeks happiness, and law is one of his tools. one of the most radical figures of 60 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 utility flow was jeremy bentham (1748-1832), a philosopher, economist, jurist, and legal reformer, who had the ability to formulate the principle of usability (utility) into an ethical doctrine, known as utilitarianism or utilitarian (ohoitimur 1997). the principle of utility was stated by bentham in his monumental work introduction to the principles of morals and legislation (1789), bentham (1960) defines it as the nature of all objects tend to produce pleasure, goodness, or happiness, or to prevent damage, suffering, or crime, and unhappiness to those whose interests are considered. the flow of utilities considers that in principle the purpose of the law is only to create community benefit or happiness. the flow of utilities includes practical moral teachings which according to its adherents aim to provide the maximum benefit or happiness for as many citizens as possible. bentham argues that the state and law exist solely for the true benefit, namely the happiness of the majority of the people. however, the concept of utility also gets sharp points as experienced by the first value above, so that with the criticism of the principle of the usefulness of the law, john rawls develops a new theory that avoids many problems that are not answered by utilitarianism. the theory of criticism of utilities is called the rawls or justice as fairness theory (justice as honesty) (rawls 2009). corruption in the context of criminal law enforcement in various parts of the world, corruption always gets more attention than other criminal acts. this phenomenon is understandable given the negative impact caused by this crime. the impact can touch various fields of life. corruption is a serious problem. these crimes can endanger the stability and security of the community, endanger socio-economic development, and also politics, and can damage the values of democracy and morality because gradually these actions seem to be a culture (hartanti 2008; hatta 2010). the increasing pattern of corruption in this country is a picture of the fragility of the government undermined by corruption. as the saying goes: fish rot from its head; corruption is mostly carried out by elite political parties and government. the interior ministry noted that from 2004 to july 2012, there were thousands of regional officials involved in corruption, starting from governors, mayors, regents to members of regional and central legislatures (januar 2013). etymologically, criminal acts are juridical technical terms originating from the dutch language strafbaarfeit (sudarsono 2007), and there are two word-forming elements, namely strafbaar and feit. feit words in dutch are 61 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 interpreted in part from reality, while strafbaar means punishable, so that literally strafbaarfeit’s words mean part of the reality that can be punished. according to moeljatno in sudarto (2007) as quoted by prayudi said that the term strafbaarfeit is translated as a criminal act, the act is a condition made by someone or something done. this action refers to the consequences or consequences. so it has an abstract meaning that shows two concrete circumstances, namely the existence of certain events and the people who act, which caused the incident (prayudi 2010). this strafbaarfeit become more complicated in the enforcement process especially in criminal law, because not only concerning to the criminal act and criminal responsibility, but also the concrete condition when the crimes happened. in terminology, corruption comes from corruptie or corruptus latin languages. it is from this latin language that it falls into various languages such as english: corruption, corrupt; french: corruption, and corruptive; dutch: korruptie (hamzah & dahlan 2007). furthermore, it is stated that corruption itself also originates from the original word corrumpere, an older latin word which means damage or depravity, other than that it is also used to indicate bad conditions or actions (camphell 1979) according to the indonesian dictionary (kbbi), corruption comes from the word corrupt, which means bad, damaged, rotten, likes to use goods (money) entrusted to it; can be bribed (use his power for personal gain). corruption according to the terminology is fraud or misuse of state money (companies, organizations, foundations and so on) for personal or other people's benefits (bppb 2016). hamzah & dahlan (2007) also said that literally, the meaning of corruption can be: a. crime, decay, can be bribed, immoral, depravity and dishonesty. b. bad actions such as embezzlement of money, receipt of bribes and so on. c. acts that creates a situation that is bad, evil and despicable behavior, or moral depravity, bribery and forms of dishonesty. definition of corruption in accordance with law number 20 of2001 concerning amendment to law number 31 of 1999 concerning eradication of corruption crime (law no. 20 of 2001), namely: “anyone who illegally commits acts of self-enrichment or other people or a corporation that can harm the state's or the country's economy”. corruption, in addition to being an extraordinary crime, has also become an international crime. corruption crimes have a correlation with other forms of crime, especially organized crime and economic crime, including money laundering crimes. corruption has also become systematic and entrenched behavior (mardani 2009; naning 1983). there are so many definitions from experts who try to explain the meaning of corruption in their respective perspectives, both from a moral, religious, socio-cultural and legal perspective. from any perspective, corruption with all its forms and modus operandi is interpreted as a disgraceful act that is contrary to moral, social, cultural, religious and legal values. there is no place for corruption (syamsuddin 2012). 62 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 the 2003 united nations convention against corruption (uncac) convention, describing the problem of corruption is a serious threat to the security stability of national and international communities, has weakened the values of democracy and justice and endangered sustainable development and law enforcement. the impact of the crime of corruption itself causes the country's development process to be hampered towards a better one, namely increasing welfare and alleviating people‟s poverty. in addition, powerlessness before the law in the sense of financial aspects, position or closeness with officials plus the lack of commitment from the government elite is a factor why corruption still thrives in indonesia. that all happened because the law is not the same as justice, the law comes from the human brain of the ruler, while justice comes from the heart of the people (ayudo 2012). recognizing the complexity of corruption problems in the midst of multi-dimensional crises and the obvious real threats that will occur, the crime of corruption can be categorized as a national problem that must be dealt with seriously through the balance of decisive and clear steps involving all potential exists in the community, especially the government and disciplinary officials. corruption is an extraordinary crime, because excess corruption can damage public trust in the state, disrupt economic growth, hinder efforts to alleviate poverty, cripple investment, both foreign and local, destroy foreign trust in indonesia, undermine apbn/apbd can threaten political stability and sustainable development. according to international views, corruption has also become an international crime (international crime). this is in accordance with the united nations convention against corruption (uncac). indonesia itself has had law number 1 of 2006 concerning reciprocal assistance for criminal problems and has ratified the uncac on april 18, 2006 with law number 7 of 2006 concerning ratification of the united nations convention against corruption, 2003 (united nations convention anti-corruption, 2003). corruption crimes correlate with other forms of crime, especially organized crime and economic crime, including money laundering crimes. corruption in indonesia has become systematic and entrenched behavior. as complex as the problem of corruption, indonesia has had several regulations concerning eradicating corruption and regulations relating to corruption crimes, such as law number 28 of 1999 concerning the implementation of clean and free of corruption, collusion and nepotism, law no. 31 of 1999 which was later amended by law no. 20 of 2001, law number 30 of 2002 concerning the corruption eradication commission, law no. 7 of 2006, law number 15 of 2002 jo. law number 15 of 2003 concerning money laundering, presidential instruction number 5 of 2004 concerning the acceleration of corruption eradication, and presidential decree number 11 of 2005 concerning the coordination team for the eradication of corruption crimes. 63 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 the causes of the emergence of corruption are internal and external. internally the drive for corruption is caused by: encouragement of need (inadequate salary), encouragement of greed (greed), lack of moral strength, consumptive lifestyle, laziness (wanting a lot without effort), weak faith (not practicing the teachings religion); while the external causes of corruption are the environment (corruption has become a culture or system), opportunities (weak supervision), inadequate systems of accountability, weak legislation and law enforcement agencies, leaders who do not set an example, no right organizational culture, and others. some previous research stated that corruption have various modes (ibrahim, yusoff, and koling 2018; arifin, utari, and subondo 2016; arifin 2016; arifin 2014a; arifin 2014b; ash-shidiqqi & wibisono 2018; wibowo 2018) such as: a. extortive corruption is corruption in bribery or bribery mode carried out by employers to officials to obtain certain facilities; b. manipulative corruption means a person's request to a legislative or executive official to make certain regulations or regulations that can benefit the person even if it has a negative impact on the wider community; c. nepotistic corruption is corruption that is caused by family ties, such as having a family that is given excessive facilities or is accepted as a civil servant without any consideration or matters worthy of holding the position; and d. subversive corruption is the arbitrary robbery of state wealth to be transferred to foreign parties for personal gain. the elements of criminal acts of corruption can actually be seen from the definition of corruption or offense formulation contained in the provisions of applicable laws and regulations, and some understanding and formulation of offenses for corruption as stated above. the elements of criminal acts of corruption that are inventoried in law no. 20 of 2001 are: a. the actions of a person or legal entity against the law; b. this action abuses authority; c. with the intention to enrich yourself or others; d. such actions are detrimental to the state or economy of the country or should be suspected of harming the country's finances and economy; e. giving or promising something to a civil servant or state administrator with the intention that the civil servant or the organizer of the country acts or does not do something in his position, which is contrary to his obligations; f. giving something to a civil servant or state administrator because or relating to something that is contrary to the obligation, carried out or not done in his position; g. giving or promising something to the judge with the intention to influence the case decision handed over to him to be tried; 64 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 h. giving or promising something to someone who, according to the provisions of legislation, is determined to be an advocate to attend a court hearing with the intention of influencing the advice or opinion to be given in connection with a case submitted to the court for trial; i. the existence of fraudulent acts or deliberately allowing the occurrence of fraudulent acts; j. civil servants or people other than civil servants who are assigned to run a public office continuously or for a while, intentionally embezzling or securities held for their position or allowing the money or securities to be taken or embezzled by others or assisting in conducting the deed; k. by intentionally darkening, destroying, destroying, or not being able to use goods, deeds, letters, or lists that are used to convince or prove in advance the competent authorities, who are controlled because of their position and allow others to eliminate, destroy, destroy or register and help other people eliminate, destroy, destroy, or make unused items, deeds, letters or lists; l. a civil servant or organizer who receives a gift or promise even though it is known or reasonably suspected, that the gift or promise is given because of the power or authority related to his position, or that in the mind of the person giving the gift or promise is related to his position. with the existence of elements of corruption committed in the laws and regulations, then every act of a person or corporation that meets the criteria or formulation of the above offense, then he is subject to sanctions in accordance with the applicable provisions. it must be remembered and understood that the elements of criminal acts are very important to know because by not fulfilling the element of a crime, the perpetrator of crime can be free from all lawsuits and in fact causes so that a defendant of corruption is free from the fulfillment of elements that is. strafrechtpolitiek on the assets recovery of corruption in indonesia: problems and challenges corruption, collusion and nepotism for developing countries, is like a disease that is difficult to avoid and seek a cure. despite being the determination of all nations in the world to eliminate or reduce the level of intensity, quality and quantity in an effort to create clean governance and good governance, corruption is difficult to eradicate. all parties continue to aim to be able to realize a just and prosperous society, prosper in justice, and justice in prosperity in a law state and the welfare state that is aspired. (sulistia & zurnetti 2012) 65 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 corruption is also a door for the flourishing of terrorism and violence because social inequality and injustice still continue or take place, while a small proportion of the community can live better, more prosperous, luxurious in the midst of poverty and limited society in general. the emergence of acts of terror is caused by the widening gap and injustice in society. what the perpetrators of corruption often do not realize is that corruption is a complex crime and has social implications for others because it involves the right of other people to get the same welfare. even corruption can be called a social sin where a sin or crime is committed and affects many people and the value of sin is far greater than the personal sin (mujiran 2004). commitment to eradicating corruption is an important milestone in the governance of a country. in indonesia, almost every election of the head of state does not escape the seriousness of looking at what commitments are given by prospective heads of state to eradicate corruption. inevitably this happens because corruption continues to erode people's rights to state wealth. abundant state wealth, almost nothing left for people‟s welfare. some references state that juridical corruption eradication only began in 1957, with the issuance of military rulers regulation number prt/pm/06/1957. the regulation known as the regulation on eradicating corruption was made by the military authorities at that time, namely the army and navy military rulers. presidential decree no.28 of 1967 concerning the establishment of the corruption eradication team. in its implementation, the team cannot eradicate corruption to the maximum, it can even be said to be almost nonfunctioning. this regulation even triggered various forms of protest and demonstration starting in 1969 and its peak in 1970 which was then marked by the establishment of commission iv which was tasked with analyzing problems in the bureaucracy and issuing recommendations to overcome them. the state document outline of the big state policy (gbhn) which contains one of them is the willingness of the people to eradicate corruption. however, the implementation of the gbhn was leaked because the state management was characterized by a lot of state budget fraud and leakage in all sectors without any control at all. state organs such as parliament which have a supervisory function are weakened. the dpr‟s budget is determined by the government so there is no oversight function. the judiciary was made similar by the new order regime, so there was no strength left to be able to prosecute corruption cases independently. the strength of civil society was spelled out, the new order authorities slowly limited the movement of society and intervened to maintain their power. the politics of criminal law in the framework of returning state losses due to criminal acts of corruption needs to be stressed so as not to get out of its main goal, namely to save state money from criminal acts of corruption, article 18 of law no. 31 of 1999 has explained all that, the article is still relevant to the reality that exists today. state losses due to corruption are a 66 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 consideration mainly from the existence of the law on the eradication of criminal acts of corruption. in considering the letter (a) and letter (b) of law no. 31 of 1999 concerning eradication of corruption crime, affirmed: a. that corruption is very detrimental to state finances or the country's economy and hampers national development, so it must be eradicated in order to create a just and prosperous society based on pancasila and the 1945 constitution. b. that the consequences of criminal acts of corruption that have occurred so far in addition to harming the state's finances or the country's economy, also hamper the growth and sustainability of national development which demands high efficiency. the law on eradicating corruption crime implies 2 (two) things. first, that the presence of the law to eradicate corruption is in the context of safeguarding it in the state financial management, there is no loss of state money due to corruption. second, if there is a criminal act of corruption that is detrimental to state finances, then in order not to have an effect on economic growth and the continuity of national development, the state (through the criminal justice system) is given the authority to claim state losses from perpetrators of corruption. in accordance with the predicate given to corruption as an extraordinary crime, achieving the goal (political) of criminal law so that there is no state loss if corruption occurs, it is not easy. since corruption was regulated separately as a special offense outside the criminal code in 1957 (1957 was recorded as the era of enactment of the military regulations from 1957 to 1958. initially corruption was regulated in the criminal code, with the development of the situation corruption was specifically regulated in law its own law), following law no.24/prp/1960 concerning investigation, prosecution and corruption criminal investigation, law no. 3 of 1971 concerning the eradication of corruption crime, and finally law no. 31 of 1999 concerning eradication of corruption crimes amended by law no. 20 of 2001 concerning changes to law no. 31 of 1999 which is still valid; the return of state losses due to corruption has never been maximized. changes after changes to the regulation of criminal acts of corruption in addition to marking the sincerity and determination of the indonesian people to eradicate corruption is not a crime, also marking efforts to improve the substance of the regulation against corruption in order to be empowered to save a qualified state finances, for example, regarding the interpretations or terminology of corruption, elements against the law and types of criminal sanctions. law no. 31 of 1999 concerning eradication of corruption crime formulates the terminology of corruption as: ... actions enriching oneself or others or corporations against the law (wederrechtelijkeheid) in formal terms (formale 67 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 wederrechtelijkeheid) and material (materiel wederrechtelijkeheid). meaning against the law formal or material, even though the act is not regulated in the laws and regulations, but if it is deemed despicable because it is not in accordance with the sense of justice or norms of social life in the community, then it can be punished. in this provision the word “can” before the phrase “detrimental to state finances or the economy of the country” indicates that the crime of corruption is a formal offense, namely the existence of corruption is enough to fulfill the elements of action that have been formulated not with the emergence of consequences (prayudi 2007). for the types of criminal sanctions the law on eradicating corruption crime is considered to be preparing very heavy criminal sanctions, ranging from capital punishment, additional criminal penalties as referred to in the criminal procedure code and article 18 of law no. 31 of 1999 (muladi 1995; muladi & nawawi arief 2010) one of the objectives of the enactment of the law on the eradication of corruption crimes (law no. 31 of 1999 in conjunction with law no. 20 of 2001) is to restore state losses. therefore, the enforcement of the criminal law prioritizes returning the loss of state money from the perpetrators of corruption. efforts to repay losses of state money from perpetrators of corruption will be successful if there is cooperation between law enforcement officials (police, prosecutors, kpk) to uncover criminal acts of corruption, especially in efforts to recover state losses. without such cooperation, it will be difficult for a state financial/economic loss to be returned. because, there is no corruption actor who wants to return the state money but he is still put in prison. corruption actors are willing to return state money if the criminal case is abolished. application of article 18 of law no. 31 of 1999 is still very rare. social facts around the return of state finances through the application of additional criminal penalties are fairly minimal. therefore it is also quite understandable if the return of state losses is not/has not been directly proportional to the amount of state losses caused by criminal acts of corruption. conclusion finally, it is emphasized and this paper underlined that, the implementation and spirit of returning state losses in criminal acts of corruption is not optimal because of the many political interests and far from the political objectives of criminal law. the politics of criminal law in the context of returning state losses due to criminal acts of corruption needs to be emphasized so as not to get out of its main purpose, namely to save state money from criminal acts of corruption, article 18 of law no. 31 of 1999 has explained all that, the article is still relevant to the reality that exists today. 68 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 state losses due to corruption are a consideration mainly from the existence of the law on the eradication of criminal acts of corruption. in considering the law on the eradication of corruption crime, it implies 2 (two) things. first, that the presence of the law to eradicate corruption is in the context of safeguarding it in the state financial management, there is no loss of state money due to corruption. second, if there is a criminal act of corruption that is detrimental to state finances, then in order not to have an effect on economic growth and the continuity of national development, the state (through the criminal justice system) is given the authority to claim state losses from perpetrators of corruption. the purpose of the enactment of the law on the eradication of corruption crime (law no. 31 of 1999 in conjunction with law no. 20 of 2001) is to restore state losses. therefore, the enforcement of the criminal law prioritizes returning the loss of state money from the perpetrators of corruption. application of article 18 of law no. 31 of 1999 is still very rare. social facts around the return of state finances through the application of additional criminal penalties are fairly minimal. therefore it is also quite understandable if the return of state losses is not/has not been directly proportional to the amount of state losses caused by criminal acts of corruption. references ali, achmad. keterpurukan hukum di indonesia: penyebab dan solusinya. jakarta: ghalia indonesia, 2002. google scholar online arifin, ridwan. “analisis hukum internasional dalam perampasan aset di negara kawasan asia 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https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=corporate+responsibility+in+money+laundering+crime+%28perspective+criminal+law+policy+in+crime+of+corruption+in+indonesia%29&btng= https://doi.org/10.15294/jils.v3i02.22740 https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=dari+hukum+kolonial+ke+hukum+nasional%3a+dinamika+sosial+politik+dalam+perkembangan+hukum+di+indonesia&btng= http://onesearch.id/search/results?lookfor=dari+hukum+kolonial+ke+hukum+nasional+dinamika+sosial+politik+dalam+perkembangan+hukum+di+indonesia+huma&type=allfields&limit=20&sort=relevance 72 http://journal.unnes.ac.id/sju/index.php/jils sugeng wahyudi jils 4 (1) may 2019, 45-72 law quote “corrupt politicians make the other ten percent look bad” ― henry alfred kissinger, nobel peace prize source: https://www.goodreads.com/quotes/tag/corruption jils (journal of indonesian legal studies) volume 4(2) 2019 189 available online at http://journal.unnes.ac.id/sju/index.php/jils research article dna profiling and the challenges of crime management in nigeria: the case of the nigeria police force ucheawaji nathaniel nte 1 , ngboawaji daniel nte 2 , bribena kelvin enokie 3 , onyeka bienose 4 1, 2 department of intelligence and security studies, novena university, delta state, nigeria. 3 faculty of law, niger delta university, wilberforce island, amasoma, bayelsa state, nigeria. 4 global intelligence, peace and security institute, nigeria  bienoseonyeks@gmail.com submitted: march 17, 2019 revised: july 18, 2019 accepted: november 11, 2019 abstract this research investigated dna profiling and crime management in nigeria. the major objective of the study was to find out whether the nigeria police are aware of how to use dna optimally as a source of evidence in the investigation process. in nigeria, the nigeria police is one of the leading agencies statutorily charged with the responsibility of providing internal security through fighting of crime. the police does this job by undertaking criminal investigation with a view to collecting evidence to be used for courtroom prosecution of criminal suspects. since 1930 the nigeria police was established, it has relied mainly on the traditional (old school) method of criminal investigations based on eye witness testimonies and statements, the investigators sense of judgment and experience. overwhelming evidence from this research points to the fact that the said method has proven ineffective, as may unsolved crimes, wrongful prosecution or conviction of innocent criminal suspects and failed courtroom prosecution litter the performance profiles of the nigeria police. the study concluded that the capacity level of the nigeria police to collect and preserve the dna evidence as part of the agency's criminal investigation process and use same for courtroom prosecution has significant effect on the effort it makes to fight crime through dna profiling, and that the availability or non-availability of sophisticated dna technology in nigeria has significant effect on the effort the nigeria police makes to fight crime through dna profiling. the availability or non-availability of a central dna database in nigeria has significant effect on the efforts of the nigeria police makes to fight crime through dna profiling. keywords: dna; profiling; nigeria; investigation; nigeria police force; crime management nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 4 issue 2, november 2019 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) 190 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 189 table of contents ………………………………...………….….. 190 introduction ………………………………………………………. 191 i. the relevance dna database for solving crime in nigeria …………………………………………………….…... 195 ii. area of study: the nigeria police force ………….. 198 a. objectives of the study ………………………………………….. 200 b. research questions ………………………………………………. 200 c. research hypotheses …………………………………………….. 201 iii. research methodology …………………………………... 201 a. design of the study ………………………………………………. 201 b. population for the study …………………………………………. 201 c. sample size determination ……………………………………… 202 d. research instrument and method of administration ………….. 203 e. method of data analysis ………………………………………… 204 presentation and analysis of data .……………………. 204 i. return rate of questionnaire ………………………… 204 ii. analysis of the demography of respondents …. 205 a. responses to the questionnaire items on the three research constructs of the study …………………………………………... 206 b. responses to the questionnaire items pertaining to research question no. 2 ……………………………………………………. 208 c. test of hypotheses ……………………………………………….. 210 summary of major findings ………………………………… 212 conclusion ……………………………………………………..…… 213 recommendations ……………………………………………...... 214 references …………………………………………………………… 215 copyright © 2019 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. how to cite: nathaniel nte, u., daniel nte, n., enokie, b.k., & bienose, o. (2019). dna profiling and the challenges of crime management in nigeria: the case of the nigeria police force. jils (journal of indonesian legal studies), 4(2), 188-216. doi: https://doi.org/10.15294/jils.v4i2.29446. https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35405 jils (journal of indonesian legal studies) volume 4(2) 2019 191 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction dna profiling has attracted a good deal of public attention in the last decade. the practical application of dna technology to the identification of biological materials has had a significant impact on forensic biology, because it enables much stronger conclusions of identity or non-identity to be made (roberts, 2015; ogle, 2014). indeed, the development and application of dna profiling has been widely described as the greatest breakthrough in forensic science since fingerprinting (townley& ede, 2004). in dna profiling and databasing, laboratories directly compare dna profiles obtained from biological materials left at crime scenes with those taken from individuals already charged with involvement in specific serious criminal offences under investigation. however, the subsequent ability to construct digital representation of profiles and store them in continuous searchable computerized databases has made possible a vastly expanded role for dna profiling in many criminal investigations. in particular, this technology is increasingly applied inceptively rather than reactively. in other words, it shapes an inquiry by identifying potential suspects from the start rather than merely supporting their incrimination or exoneration after they have been nominated for attention by other more traditional, and often very protracted, forms of investigative practice (roberts, taupin and raymond, 2015). in addition, a series of laboratory improvements to enable the reliable extraction of genetic material from a wider range of samples in varying conditions has meant that forensic laboratories can more easily generate dna profiles to facilitate the investigation and prosecution of a larger number of crime types. sometimes (as in cold case reviews) such methods may succeed when other forms of forensic or witness evidence has proved insufficient or unreliable in helping bring offenders to justice for crimes committed some years earlier (jobling& gill, 2014; lazer, 2004; nte, 2012; onashile, 2009). accordingly, policy makers, criminal investigators and legal professionals have been able to depict a series of benefits already derived or potentially derivable from the increasing routine and inexpensive use of this technology and its expanding applications. these benefits include the potential to make speedy and robust suspected offender identifications through automated profile comparisons in centralized criminal justice databases; the ability confidently to eliminate innocent suspects from investigations; the increased likelihood of generating reliable and persuasive evidence for use in court; a reduction in the cost of many investigations; the likely deterrent effect of dna databasing on potential 192 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils criminal offenders; and a possible increase in public confidence in policing and in the wider judicial process (williams & johnson, 2016). however, the spread of forensic dna profiling and databasing has also prompted a wide range of concerns about problem that may arise from the storage of tissue samples (especially those taken from individuals without his or her consent) and the proliferating uses of genetic information by the police. as a result, in jurisdictions where forensic dna databases have been introduced, a range of critical commentaries have emerged which have sought to counter claims for the effectiveness of dnaaided investigations with assertions of potentially problematic ethical and social consequences of their uses. such commentaries have focused on the threat to the bodily integrity of citizens who are subject to the forced and nonconsensual sampling of their genetic materials; the intrusion and denigration of privacy rights caused by the storage and use of tissue samples; the potential for the future misuse of such samples held in state and privately owned laboratories: the prospects of long-term bio-surveillance occasioned by the storage of genetic information in police database and biological samples in forensic laboratories; and the possibility for the deceptive use of dna forensic evidence in police investigations and criminal prosecutions (billings et al., 2012; nte, 2011). since the early 1990s, legislators across the globe have struggled to balance these two opposing standpoints when deliberating the establishment and permissible uses of dna databases in their own respective jurisdictions. in doing so, they have been required to address a range of normative questions, including under what circumstances should the police be able to obtain, without consent and with force if necessary, dna samples from suspects? what range of circumstances and offences should license this sampling?; what agencies should be permitted to carry out the analysis of the samples?; what should be the criteria for the inclusion of dna profiles on databases?; and what are the legitimate uses of samples and profiles held by the police? others are from which individuals should samples and profiles be retained following the completion of investigations and for how long should they be held?; who should own, manage, and govern the use of databases accessed by the police?; should access to samples and profiles be permitted to any other organizations?; and what systems should be in place for the quality assurance and oversight of the varying scientific and bureaucratic practices that make up sample analysis, profile construction, storage and comparison? (williams & johnson, 2016; laurie, 2012; o‟neil, 2013). van der westhurzen (2013) suggests that whenever policymakers seek to strike a balance between the potential instructiveness and effectiveness of forensic dna profiling and databasing, three important jils (journal of indonesian legal studies) volume 4(2) 2019 193 available online at http://journal.unnes.ac.id/sju/index.php/jils matters are the focus of attention. the first concerns the legal (and moral) categorization of those individuals deemed legitimate and appropriate „population‟ for compulsory dna sampling, profiling and databasing. the second concerns representations of the nature of the information derived and derivable from dna samples and forensic dna profiles. the third is the question of how the permissible uses of such samples and profiles in the course of specific criminal investigations and prosecutions have been established and contested (technikson, 2015). the nigeria police is charged with the responsibility of maintaining law and order and internal security, especially as they affect protection of lives and property of the entire populace (oladele, 2006; nte, 2012). but unfortunately, the effort of the police in curbing crime and protecting lives and property has been quite inadequate, thereby attenuating the confidence of the public in the police. this aggravated mistrust between the police and members of the nigerian public adds to the mystery of many unsolved serious criminal offences in the country such as high profile assassinations, armed robbery, kidnapping, and rape (olashile, 2009). over the years, experts have linked the many cases of serious criminal offences that dot the nigerian criminal justice system to absence of forensic evidence. this forensic gap has rendered justice quite effective in the country. the result is a serious dent on the forensic investigative ability of the nigeria police and other such security agencies. the identification of criminal suspects is a critical element in forensic investigation. however, it is apparent that obtaining dna profiles of crime scenes and storing such data in dna criminal investigation databases with a view to comparing such data with the dna profiles of crime suspects has the potential of deterring criminals and repeat offenders (roberts, taupin& raymond, 2015). most unfortunately, however, the nigeria police have over the years demonstrated lack of capacity for effective forensic investigation (olashile,, 2009; nte, 2012). olashile (2009) also argued that the police records not based on strong forensic evidence are largely useless as many criminals easily escape detection because names and faces change every day. this situation has created a criminal investigation quagmire in the country. in the light of the foregoing, this study seeks to evaluate the challenges of deploying dna profiling for forensic investigation by the nigeria police as part of discharging its statutory mandate of fighting crime in the country. deoxyribonucleic acid (dna) is a unique genetic data which is more useful and effective than fingerprint data and which could revolutionize nigeria‟s crime-fighting efforts. the importance of a proper and effective approach to processing a crime scene for clues should never be taken for granted. over the past two decades, there have been fundamental changes 194 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils in the laboratory examination of physical evidence in the field of forensic investigation. one such technological advancement has been the use of dna profiling as in investigative tool. dna methods are an established part of the nigerian law enforcement and criminal justice systems. it is hard to believe that the technologies were developed as recently as the mid-1980s, and that the database of law enforcement profiles was established in the 1990s. in crimes involving dna, it is possible to obtain a conviction if dna evidence is acted upon quickly, and if a crime scene is handled in the proper manner. suspects can be identified from the analysis of dna, and others eliminated, to narrow down the list. according to one nigerian senior advocate in the high court, it occurs on an unfortunately frequent basis that courts declare most dna evidences inadmissible because they are contaminated, or the scene disturbed, or not even preserved, or that there is no proper chain of evidence from the time when (or if) the dna evidence is collected. a crime scene is the primary source of physical evidence, and that preliminary investigations involve the collection and thorough analysis of evidence before a theory is formulated. dna evidence that is incorrectly gathered could lose its integrity and/or evidential value, causing this type of physical evidence to be declared inadmissible in criminal proceedings. alternatively, dna evidence might not be gathered at all and this could have a detrimental effect on the outcome of the result of a trial. this is one of the problems of this study. these researchers conducted a preliminary investigation into whether the detectives and crime investigators at the identified police station are aware of how to use dna optimally for those cases where it can be a source of evidence in the investigation process. the pilot investigation sought to find out the following: how many cases were reported, and how many cases were either solved (convictions obtained), sent to court, and closed as false, withdrawn, filed, or undetected. results of the investigation showed that the conviction rate in dna-related cases amounted to three percent-a poor solving rate on the part of the rape statistics and murder statistics in the country. with this low conviction rate, the researcher will prove that there is a problem regarding the investigation of dna-related cases by the nigeria police. the curriculum of the nigeria police was also perused with respect to both the detective course and training offered to learner detectives, as well as the comprehensive training in the investigation of dna-related cases, so that an attempt might be made to improve the ability of investigators to conduct dna-related investigations. it was found that detectives on the detective courses were given training in the collection and preservation of evidence, however, the department was not at the level jils (journal of indonesian legal studies) volume 4(2) 2019 195 available online at http://journal.unnes.ac.id/sju/index.php/jils where one could now refer to the detectives completing the course as experts in the field of evidence collection. this is another problem of this study. finally, a perusal of previous research efforts on crime fighting in nigeria shows that much of the efforts of such researchers had focused on use of the non-scientific tools of criminal investigation such as eye witness testimony and statements without any attention paid to forensic aspects of criminal investigation based on dna profiles. the foregoing no doubt leaves a yawning gap in research that needs to be filed. this constitutes another research problem to this study. i. the relevance dna database for solving crime in nigeria as earlier stated, there is no country in the world that can succeed in fighting crime without having in place its own robust, reliable and dynamic dna database system. for instance, that such country like the usa has been able to deal with the myriad of crime incidents is attributable to its robust sophisticated databases considered to be the best in the worldcombined dna index system (cobis) managed by the fba (innocent, 2015; ugochukwu et al., 2014). in nigeria, the agency statutorily charged with the responsibility of providing internal security through crime prevention, crime control, and crime fighting is the nigeria police whose origin dates back to 1930 (ojukwu, 2012; alemuika, 2014). in the effort to discharge the foregoing responsibility, the said nigeria police has been all along relied on the traditional method of criminal investigation (perjoratively referred to as the “old school” method) (julian, kelty& robertson, 2012; olashile, 2009) which, of course, is based mainly on evidence from eyewitness testimonies and statements as opposed to forensic forms of evidence such as dna evidence (nte, 2012; onashile, 2009). to this extent, the agency relied less on forensics in its criminal investigations. as consequence of the foregoing coupled with other interrelated factors, the crime wave in the country kept increasing both in the rate of occurrence and forms, including murder, political assassination, armed robbery, kidnapping, terrorism, rape and other forms of sexual assault, arson, burglary, car snatching, and suicide, among other serious offences. another consequence of the over-dependence on the “old school” method of criminal investigation on the part of the nigeria police is the present increase in the number of unsolved crime (nte, 2012), failed criminal cases 196 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils by police persecutors, and arrest, prosecution or imprisonment of innocent suspects (onashile, 2009). it is against the backdrop of the foregoing that experts have called for the nigeria police and other law enforcement agencies and the criminal justice community in nigeria to embrace forensic science as is done in other civilized countries (nte, 2012). the need for nigeria to become forensic-compliant can never be over-emphasized. developing a dna database will be a step in the right direction. the most important thing needed now is the federal government‟s political will in making forensics a priority in our judicial system. by this, we mean setting up standard forensic labs, enhancing training of forensic experts, etc. it should be a major focus in enhancing nigeria‟s internal security. as enunciated by the us attorney-general (innocent, 2015), the following steps are recommended for establishing a robust dna database for nigeria: i. a systematic collection of all dna samples found at every crimescene, be it homicide, arson, rape, bomb blast, armed robbery, kidnapping or even riot situations in the country. personnel trained in sample evidence collection should be tasked with this responsibility. they could be hired or employed forensic scientists, crime scene investigators or specially trained law enforcement agents. this is important because the procedural methods involved in sample evidence collection determine the admissibility of evidence in a competent court of law. if the evidence is not recovered properly, it might get damaged or destroyed. if standard procedures are not followed in recovering, packaging, labeling and storing the evidence before analysis, that evidence might be thrown out by the court and all efforts wasted! ii. processing of the sample evidence. this involves the real work in scientifically analyzing the samples to building dna profiles. the main modern method of analyzing dna is by using an str pcrbased equipment. in simple terms, an str pcr (short tandem repeats polymerase chain reaction) based equipment is a machine that amplifies minutes dna materials to sufficient quantity enough to develop a genetic profile from. since in most cases, samples to be analyzed are usually in very small quantities, such as drops of blood, tiny bubbles of saliva, dried patch of semen, sweat, stains from feet or palms, pcr multiples the extracted dna into sufficient levels for a profile to be developed (roberts, 2012). interestingly, the pcr machine is said to be scarcely available in nigeria. the nigerian forensic lab that is managed by the nigerian police in lagos does not have a pcr machine. samples for dna analysis are sent abroad and may take up jils (journal of indonesian legal studies) volume 4(2) 2019 197 available online at http://journal.unnes.ac.id/sju/index.php/jils to four weeks for results to return. dna analysis is not cheap depending on the lab. one can now see the challenges involved in building a dna database in a developed country like nigeria. you cannot have a dna profile bank without dna equipment. more so, qualified personnel must handle such equipment. these could be geneticists, molecular biologists, trained technologists. iii. very importantly, computing the developed dna profiles into a database can be accessible to only relevant agencies. the database can be in categories such as a crime scene index (csi), missing person index (mpi), convicted offenders profile (cop) and many other profile categories that can be developed. this will help in distinguishing what category to input into a developed dna profile. for instance, it took the uk national offenders database 40,000 profiles per month to reach 1.2 million samples as at november 2001; that figure would have skyrocketed to over 7 million by now (roberts, taupin& raymond, 2015). so, how can this challenge be overcome? we suggest the following approach: have at least one standard and functional forensic lab in every state of the federation. at worst, one-state-of-the art forensic lab should be installed in each of the six (6) geo-political zones in the country. these labs will process, analyze and upload to the main database any recovered dna sample. by so doing and starting immediately, nigeria would have gotten its first multi-functional and robust dna database in one year from now and counting! this will be a milestone. these labs should not be headed by persons who have neither the concrete nor relevant forensic backgrounds. as a matter of fact, strict standards and international accreditation protocols should be followed in setting up these labs. the set-up should meet international best practices such that they could receive samples from all over the world for analyses. our labs can be a reference point. this can generate revenue for the nigerian state. it can increase the quality of our research content and competency to the world, especially the global forensic community (kazeem, 2016). the uses and applications of a national dna database can never be quantified in value. a developed and reliable database will help in (norswell, 2014): 1. linking several crime scenes together, 198 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. exonerate the innocent (prisons in nigeria will be decongested for once because many in there are wrongly detained), 3. identify the potential serial offender, 4. unraveling clues from cold cases and comprehensively closing the unsolved cases, 5. identifying the unknown perpetrator from numerous cases of only victims and no suspects, 6. dna identification is particularly useful when a person has been involved in a fire or vehicle accident or if the body is decomposed. in such circumstances, where other methods are often impossible, dna can provide means of establishing the identity of the deceased (when a database or recovered sample is available for comparison) 7. identifying vast number of dna samples occasioned by mass disasters and mass fatality accidents. also, studies have shown that escalation of criminal history of an individual can occur. this means that the common thief of today could be the rapist tomorrow or the murderer next year. statistics in florida state showed that burglary dna matches linked to more than 28% of the state‟s homicide cases and 28% of its sexual assault cases (innocent, 2015). ii. area of study: the nigeria police force the amalgamation of northern and southern nigeria in 1914 was a precursor to the formation of the present nigeria police force on april 1, 1930, with its headquarters in lagos, commanded by an inspector-general of police. nigerians assumed the overall leadership of the force in 1964 when the late louis orokedet was appointed the first indigenous inspector-general of police (tamuno, 1970). since then, thirteen other nigerians, including the incumbent, solomon arase, have been at the helm. the nigeria police force is a product of the nation‟s constitution cited by alemika and chukwuma (2000) explicitly prohibited the establishment of the state police forces other than nigeria police force. section 214(1) stipulates: “there shall be a police force for nigeria, which shall be known as the nigeria police force, and subject to the provisions of this section, no other police force shall be established for the federation or any part thereof.” though, the country briefly experimented with local police force at the regional levels alongside the nigeria police force, as enshrined in the independence constitution of 1960 and the republican constitution of 1963 which provided for local police force and the nigeria police force, the military cut short this experiment when it seized power jils (journal of indonesian legal studies) volume 4(2) 2019 199 available online at http://journal.unnes.ac.id/sju/index.php/jils on january 15, 1966, and dissolved the local police force, as a result of the alleged negative roles attributed to the force during the first republic (1960-1966) (alemika and chukwuma, 2000). in essence, the nigeria police is a national force and the only one operating throughout the country covering an area of 923,769 square kilometers with an estimated population of over 170 million nigerians. thus, by virtue of section 4, police act of 1967, cap 359 of the laws of the federation, 1990, power is conferred upon the force for the maintenance of law and order throughout the country. the nigeria police personnel are estimated at about 377,000 (the punch, february 2, 2015). the nigeria police has a centralized management command and control structure in which the inspector-general of police singlehandedly determines both policy and operational matters. as the head of the force, the inspector-general of police is appointed by the president but on the advice of the nigeria police council, from among some serving top hierarchy of the force (noprin, 2007). according to alemika and chukwuma (2000: 8), the force is organized into 37 commands and the force headquarters. each of the 36 states and the federal capital territory abuja is served by a command of the force. the force headquarters is the office of the inspector general of police. the tasks of the force are carried out through six departments: administration and finance, operations, works and logistics, general investigation and intelligence, training, and research and planning. (johnson, johnson, and ifedayo, 2013). each of the departments is under the leadership of deputy inspector-general of police. the 37 state police commands are further organized into twelve zonal commands. the zonal commands are under the command of assistant inspectors-general, while commissioners of police are in charge of state commands. the entire force is under the command of the inspector-general of police. the commandants of the police staff college, jos and police academy wudil, kano are also assistant inspectors-general of police, while the police colleges are commanded by commissioners of police, and the police training schools where recruits are trained are under the direction of superintendents of police. however, for effective national policing and operational command, the zonal command structure was created. the country is divided into the following twelve zones: zone one is made up of kano, jigawa and katsina states, with headquarters in kano. zone two has lagos and ogun states; its headquarters is in lagos. zone three has its headquarters in makurdi; it is made up of benue, nasarrawa and plateau states. zone five comprises edo, delta and bayelsa states; its headquarters is located in benin. zone six 200 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils comprises rivers, cross river, akwa-ibom and ebonyi states; calabar is where its headquarters is located. zone seven has its headquarters in abuja and is made up of federal capital territory, kaduna and niger states. zone eight has kogi, ekiti and kwara sates; its headquarters is in lokoja. zone nine‟s headquarters is in umuahia and is made up of imo, abia, anambra and enugu states. zone ten with headquarters in sokoto; is made up of sokoto, kebbi and zamfara states. zone eleven comprises oyo, osun and ondo states; oshogbo is its headquarters. zone twelve has bauchi, borno and yobe states; bauchi is its headquarters. in the same vein, the state commands are divided into a number of police areas and divisions under the command of assistant commissioners of police who oversee police stations and police posts within their respective areas or divisions (johnson, johnson, and ifedayo, 2013: 1-2). a. objectives of the study 1. to find out the effect of the capacity level of the nigeria police to collect and preserve forensic-dna evidence as an investigative tool and use same for courtroom prosecution on the efforts by the agency at fighting crime in the country using dna profiling. 2. to investigate the effect of the availability or non-availability of adequate dna technology and infrastructure in nigeria on the efforts by the nigeria police at fighting crime in the country using dna profiling. 3. to assess the effect of availability or non-availability of a central dna database in nigeria on the efforts by the nigeria police at fighting crime in the country using dna profiling. b. research questions 1. what is the effect of the capacity level of the nigeria police to collect and preserve forensic-dna evidence as an investigative tool and use same for courtroom prosecution on the efforts by the agency at fighting crime in the country using dna profiling? 2. what is the effect of the availability or non-availability of adequate dna technology and infrastructure in nigeria on the efforts by the nigeria police at fighting crime in the country using dna profiling? 3. what is the effect of the availability a central dna database in nigeria on the efforts by the nigeria police at fighting crime in the country using dna profiling? jils (journal of indonesian legal studies) volume 4(2) 2019 201 available online at http://journal.unnes.ac.id/sju/index.php/jils c. research hypotheses 1. the capacity level of the nigeria police to collect and preserve forensicdna evidence as an investigative tool and use same for courtroom prosecution of criminal suspects has no significant effect on the agency‟s efforts at fighting crime in the country using dna profiling. 2. availability or non-availability of adequate dna technology and infrastructure in nigeria has no significant effect on the efforts by the nigeria police at fighting crime in the country using dna profiling. 3. availability or non-availability of a central dna database in nigeria has no significant effect on the efforts by the nigeria police at fighting crime in the country using dna profiling. iii. research methodology a. design of the study the design of this study is descriptive research of the sample survey type. this is because the study is descriptive and not experimental in form. survey research focuses on people and their perceptions, opinions, beliefs, attitudes, motivations and behavior (osuala, 1982). the type of survey research used is sample survey. sample survey gathers data and information from a percentage of the population to represent the entire population (tull and albaum, 1973; uzoagulu, 1998). b. population for the study the population for this study was drawn from the enugu state police command, enugu. the command has six departments as follows: administration & finance, operations, works & logistics, general investigations & intelligence, training, and research & planning. the population strength of the command as at the time of this study is 3,451. table 1 distribution of population for the study by sample units s/no. sample units no. % 1 operations. 1,377 39.9 2 general investigations and intelligence 566 16.4 3 works & logistics 521 15.1 4 admin & finance 359 10.4 202 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils 5 training 338 9.8 6 research & planning 290 8.4 total 3,451 100.0 source: field survey, 2019. c. sample size determination from the population for the study, as mentioned in 3.1 above, an appropriate sample size was determined. this is done by use of a special formula developed by yaroyamanne. the formula is given by: n = where, n = sample size n = population for the study e = level of significance (5% or 0.05). substituting in the formula, n = = = = = 358.45235 = 359 this means, therefore, that the sample size for the study is 359 jils (journal of indonesian legal studies) volume 4(2) 2019 203 available online at http://journal.unnes.ac.id/sju/index.php/jils table 2 distribution of sample size and questionnaire by sample units s/no. sample unit no. % 1 operations 144 39.9 2 general investigations & intelligence 59 16.4 3 works & logistics 54 15.1 4 admin. & finance 37 10.4 5 training 350 9.8 6 research & planning 30 8.4 total 359 100.0 source: field survey, 2019. d. research instrument and method of administration the major research tool used for this study was structured questionnaire. in the said questionnaire, the respondents were asked to indicate their preferred responses to the 15 close-ended items by ticking “√ “or marking “x” in the boxes provided against each item as follows: strongly agree (sa), agree (a), undecided (ud), strongly disagree (sd), and disagree (d). the 5-point lickert-type scale was applied in coding of the questionnaire as follows: strongly disagree – 1, disagree – 2, undecided (ud) – 3, agree (a) – 4, and strongly agree (sa) – 5. it is worthy to note that the items in the questionnaire are finally settled for after a pilot study was successfully carried out by the present researcher on randomly selected 9 target respondents at the three sample units in the enugu state police command headquarters enugu. the procedure for data collection involved a number of trips to the sample units for the study. the purpose was to contact the target respondents. at the 6 sample units that make up the population for the study, the copies of questionnaires were self-administered to the respondents. self-administration was preferred here to the postal or mail method because of the unreliability of the latter, particularly in nigeria where a good number of copies of questionnaire are likely to get lost in transit or may take more time than necessary to either reach the target respondents or come back to the researcher. at the 6 sample units, the questionnaire was distributed to the target respondents in accordance with the number of target respondents that make up each sample unit as contained in section 3.3 above. 204 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils e. method of data analysis the data collected for this study were analyzed by use of descriptive statistics and inferential statistics. descriptive statistics used involved use of frequencies, percentages and tables. inferential statistics used was pearson‟s chi-square cross tabulation statistics. the formula for the chisquare is given by the following formula: x 2 = where, ̅ = calculated chi-square value σ = zigma (i.e. sum of) o = observed frequency. e = expected or theoretical frequency note: e = it was the said pearson‟s chi-square cross tabulation statistics that was used in testing the three hypotheses earlier on put forward in chapter one of this study at 0.05 level of significance or alpha level. note also that all the computations were done by use of special computer software known as statistical package for social sciences (spss) known as e-views7.0 presentation and analysis of data in this section, the primary data collected in the course of field survey aspect of the mythology of adopted by this study are presented and analyzed. also in this chapter and as part of the said analysis, the three hypotheses earlier on put forward in chapter one of this report are tested by use of appropriate statistical tool as also earlier stated in chapter three above. i. return rate of questionnaire in this section, the return rate of the 359 copies of questionnaires which were administered on the target respondents at the state police headquarters, enugu are presented and analyzed below. jils (journal of indonesian legal studies) volume 4(2) 2019 205 available online at http://journal.unnes.ac.id/sju/index.php/jils table 4 return rate of questionnaire s/no sample unit no distributed no returned no not returned no rejected no % no % no % no % 1 operations 144 39.9 141 39.3 2 0.6 1 0.3 2 general investigations and intelligence 59 16.4 59 16.4 3 works and logistics 54 15.2 51 14.2 2 0.6 1 0.3 4 admin. and finance 37 10.4 35 9.8 1 0.3 1 0.3 5 training 35 9.8 34 9.5 1 0.3 6 planning, research & statistics 30 8.4 30 8.4 total 359 100 350 97.6 5 1.5 4 1.2 source: field survey, 2019. table 4.1 above shows that out of the 359 copies of questionnaire administered on the target respondents, 350 (97.6%) were returned well completed and, therefore, accepted, while 5 (1.5%) were not returned at all owing to one reason or the other and 4(1.2%) were returned badly completed and therefore rejected. it is, therefore based on this 350 copies of questionnaire that the analysis that follow below were made. ii. analysis of the demography of respondents table 6. demography of respondents s/no variable category no % 1 gender males 252 72.0 2 age female 98 28.0 20-25 years 98 28.0 20-35 years 7 2.0 36-45 years 132 37.7 46-55 years 88 25.1 56-65 years 18 5.1 3 marital status single 70 20.0 married 189 54.0 206 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils widowed/widowered 35 10.0 divorced 28 8.0 separated 28 8.0 4 educational qualification first sch. leaving certificate 11 3.1 wasc/sssc/gce 178 50.9 ond/nce 70 20.0 hnd/bachelor‟s degree 70 20.0 masters degree and above 21 6.0 5 working experience/ years of service 1-5 year 8 2.3 6-10 years 70 20.0 11-15 years 158 45.1 16-25 years 106 30.3 26-35 years 8 2.3 6 department operations, 141 40.3 general investigations & intelligence 59 16.9 work & logistics/ supplies 51 14.6 admin & finance 35 10.0 training 34 9.7 planning, research & statistics 30 8.6 source: field survey, 2019. the table above shows the distribution of the demographical variables/attributes of the 350 respondents with regard to gender, age, marital status, educational qualification, working experience, and departments. a. responses to the questionnaire items on the three research constructs of the study research question no. 1: what is the effect of the capacity level of the nigeria police to collect and preserve dna evidence and use same for jils (journal of indonesian legal studies) volume 4(2) 2019 207 available online at http://journal.unnes.ac.id/sju/index.php/jils courtroom prosecution on the efforts by the agency at fighting crime in the country by using dna profiling? table 7 responses to the questionnaire items pertaining to research question no. 1 s/no item sa a ud sd d 1 officers and men of the nigeria police have the requisite knowledge and technical skills in forensic science needed for collection of forensic dna evidence in the course of criminal investigation 135 158 15 18 24 2 officers and men of the nigerian police have the requisite knowledge and technical skills in forensic science needed for preserving the dna evidence that they may collect in the course of criminal investigation. 114 141 30 25 40 3 officers and men of the nigeria police have the intellectual and technical capabilities needed for effective use of the forensic dna evidence collected during criminal investigation for courtroom prosecution of suspects. 125 148 19 26 32 total 374 447 64 69 94 source: fieldsurvey, 2019. 208 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils table 7 above shows the distribution of responses to the three items that pertain to the research question no. 1 of the study. research questions no. 2: what is the effect of availability or nonavailability of forensic dna technology in nigeria on the efforts by the nigerian police at fighting crime in the country by using dna profiling? b. responses to the questionnaire items pertaining to research question no. 2 s/no item sa a ud sd d 1 the nigeria police a have no access to quality or sophisticated forensic dna technology badly needed for forensic investigation owing to the fact that such technology is not available in nigeria. 122 159 30 21 18 2 the nigeria police lack access to quality or sophisticated forensic dna technology needed for forensic criminal investigation due to lack of funds. 117 146 24 30 33 3 the nigeria police lack access to the quality or sophisticated forensic dna technology needed for forensic criminal investigation due to the lack of political will on the part of successive governments to the rising wave of crime in the country a very serious 99 161 30 26 34 jils (journal of indonesian legal studies) volume 4(2) 2019 209 available online at http://journal.unnes.ac.id/sju/index.php/jils fight. total 338 466 84 77 85 source: fieldsurvey, 2019. table 8 above shows the distribution to the three questionnaire items that pertain to the research question no. 3. research question no. 3: what is the effect of availability or nonavailability of a central dna database in nigeria on the efforts by the nigeria police at fighting crime in nigeria by using dna profiling? table 8 responses to the questionnaire items on research question no. 3 s/no questionnaire item sa a ud d sd 1 lack of adequate number of forensic science laboratories in nigeria for faster processing of dna samples from both crime scenes and suspects militates against the efforts to establish a robust central dna database for criminal investigation in nigeria. 121 17 25 10 16 2 lack of sophisticated dna equipment in nigeria significantly hampers the efforts to establish a robust central dna database for forensic criminal investigation in the country. 106 149 27 29 39 3 lack of adequate professional personnel needed for manning a central dna database is a major factor that militates against establishment of a robust central dna database in nigeria. 129 138 26 23 34 total 356 345 78 62 89 source: field survey, 2019. 210 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils table 8 shows the distribution of responses to the questionnaire items on the research question no. 3 of the study c. test of hypotheses hypotheses no. 1: the capacity level of the nigeria police to collect and preserve forensic-dna evidence as an investigative tool and use same for courtroom prosecution of criminal suspects has no significant effect on the agency‟s efforts at fighting crime in the country by using dna profiling. table 9 chi-square computer from frequency cross tabulation f-value df asymp. sig. (2sided) pearson chi-square 33.34 8 .000 likehood ratio 168.203 8 .000 linear-by linear 52.110 1 .000 association 350 n of valid cases sources: field survey, 2019; spss output table 9 above shows the output of the computed chi-square values from the cross tabulation statistics of observed and expected frequencies based on the response options provided from the responses of the target respondents. the pearson chi-square computed value is xc 2 = 33.34, while chi-square tabulated (critical) value is xt 2 = 15.507, all at 8 degree of freedom (df) and 0.05 significance level: this means that the calculated value is greater than the table (critical) value (i.e x 2 c 33.34> x 2 t 15.51; p = 0.05). decision: since the pearson chi-square computer is xc 2 = 33.34 which is greater than chi-square table value of xt 2 =5.50.7, the alternate hypothesis is accepted, thus rejecting the null hypothesis. thus, we concluded that the capacity level of the nigeria police to collect and preserve forensic-dna evidence as an investigative tool and use same for courtroom prosecution of criminal jils (journal of indonesian legal studies) volume 4(2) 2019 211 available online at http://journal.unnes.ac.id/sju/index.php/jils suspects has significant effect on the agency‟s efforts at fighting crime in the country by using dna profiling. hypothesis no. 2: availability or non-availability of adequate dna technology and infrastructure in nigeria has no significant effect on the efforts by the nigeria police at fighting crime in the country using dna profiling. table 10 pearson chi-square test as computed from the frequency cross tabulation statistics f-value df asymp. sig (2-sided ) pearson chi-square likehood ratio linear-by-linear association n of valid cases 54.47 158.203 51.110 8 8 1 .000 .000 .000 source: field survey, 2019; spss output table 10 shows the output of the computed chi-square values from the cross tabulation statistics of observed and expected frequencies based on the response options based on likert-type scale. from the responses of the target respondents. pearson chi-square computed value is xc 2 = 54.47, which is greater than the chi-square tabulated value of xt 2 = 15.507 at 8 degree of freedom (df) and 0.05 alpha level: (xc 2 = 54.47 <x 2 t 15.51; p = 05). decision: since the pearson chi-square computed is xc 2 54-47 which is greater than chi-square table value of xt 2 = 15.507 the alternate hypothesis is accepted, thus rejecting the null hypothesis. thus we conclude that availability or non-availability of adequate dna technology and infrastructure in nigeria has significant effect on the efforts by the nigeria police at fighting crime in the country using dna profiling. hypothesis no. 3: availability or non-availability of a central dna database in nigeria has no significant effect on the efforts by the nigeria police at fighting crime in the country using dna profiling. table 11 chi-square test computed from frequency cross tabulation f-value df asymp. sig (2.sided) 212 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils pearosn chi-square 38.79 8 .000 likehood ratio 168.203 8 .000 linear-by-linear association 52.110 1 .000 n of valid cases 350 source: spss output; field survey, 2019. research questions no. 3: what is the effect of the availability or nonavailability of a central dna database in nigeria on the efforts by the nigeria police at fighting crime in the country by using dna profiling? table 11 shows the output of the computed chi-square values from the pearson‟s cross tabulation statistics of observed and expected frequencies based on the response options set on likert-type scale from the responses of the target respondents. pearson chi-square computed value is xc 2 38.79, which is greater than the chi-square tabulated value of xt 2 15.507 at 8 degree of freedom (df) and 0.05 alpha level: (xc 2 38.79> x 2 t 15.51; p<0.05). decision: since the pearson chi-square computed is xc 2 = 38.79 which is greater than chi square table value of xt 2 = 15.507, the alternate hypothesis should be accepted, thus rejecting the null hypothesis. thus, we conclude that availability or non-availability of a central dna database in nigeria has significant effect on the efforts by the nigeria police at fighting crime in the country using dna profiling. summary of major findings in the course of this study, a number of findings have been made. prominent among these findings are summarized as follows: 1. the capacity level of the nigeria police to collect and preserve forensic dna evidence in the process of their criminal investigation and use same for courtroom prosecution has significant effect on the efforts by the agency to fight crime in the country through dna profiling (x 2 c 33.34> x 2 t 15.51; p=0.05). 2. availability or non-availability of sophisticated dna technology in nigeria has significant effect on the efforts being made by the nigeria police to fight crime in the country through dna profiling (x 2 c 54.47> x 2 t 15.51; p= 0.05). jils (journal of indonesian legal studies) volume 4(2) 2019 213 available online at http://journal.unnes.ac.id/sju/index.php/jils 3. availability or non-availability of a central dna database in nigeria has significant effect on the efforts being made by the nigeria police to fight crime through dna profiling (x 2 c 38.79> x 2 t 15.51; p= 0.05). conclusion the past decade has seen great advances in a powerful criminal justice tool, particularly deoxyribonucleic acid, or dna. dna can be used to identify criminals with incredible accuracy, when biological evidence exists. by the same token, dna can be used to clear suspects and exonerate persons mistakenly accused or convicted of crimes. in all, dna technology is becoming increasingly vital to ensuring accuracy and fairness in the criminal justice system. dna is generally used to solve crime in one of two ways. in cases where a suspect is identified, a sample of that persons dna can be compared to evidence from the crime scene. the result of this comparison may help establish whether the suspect committed the crime. in cases where a suspect has not yet been identified, biological evidence from the crime scene can be analyzed and compared to offender profiles in dna databases to help identify the perpetrator. this process is known as dna profiling. crime scene can also be linked to other crime scene through the use of dna database. in nigeria, the nigeria police is one of the leading agencies statutorily charged with the responsibility of providing internal security through fighting of crime. the agency does this job by first undertaking criminal investigation with a view to collecting evidence to be used for courtroom prosecution of criminal suspects. since 1930 the agency was established, it has relied mainly on the traditional (“old school”) method of criminal investigations based on eye witness testimonies and statements, the investigators sense of judgment, and experience. overwhelming evidence point to the fact that the said method has proved ineffective, as many unsolved crimes, wrongful prosecution or conviction of innocent criminal suspects, and failed courtroom prosecution litter the performance profiles of the nigeria police. in response, the nigeria police recently commenced the use of forensic dna profiling as a tool for criminal investigation and courtroom prosecution of criminal suspects as part of its efforts to manage crime in the country. based on the finding of this study, as highlighted earlier in this chapter, it is the conclusion of the study that the capacity level of the nigeria police to collect and preserve the dna evidence as part of the agency‟s criminal investigation process and use same for courtroom 214 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils prosecution has significant effect on the effort it makes to fight crime through dna profiling, and that the availability or non-availability of sophisticated dna technology in nigeria has significant effect on the effort, the nigeria police makes to fight crime through dna profiling. it is also the conclusion of the study that availability or non-availability of a central dna database in nigeria has significant effect on the efforts the nigeria police makes to fight crime through dna profiling. recommendations based on findings made in the course of this study and the conclusion reached on those findings, the following recommendations have been made: 1. governments in general, the various law enforcement agencies in the country and the nigeria police should muster the badly needed political will with regard to the issue of dna profiling as part of the process of criminal investment across the country. this could be done by way of ensuring that adequate funds are provided for issues associated with dna profiling. 2. efforts should also be made to continually improve both the intellectual and technical capabilities of the rank and file of the nigeria police on forensic investigation and prosecution through constant training and development. 3. efforts should also be made by the nigeria authorities, particularly the nigeria police to establish central dna database in the country as is done by most developed countries across the world. this database if established and well managed has the potential to link all crime scenes across the country. 4. efforts should also be made by various governments in nigeria to establish as many forensic science laboratories as possible toward faster processing of dna samples from both crime scenes and criminal suspects across the country. 5. authorities in nigeria should also ensure that state-of-the-art dna technology and equipment are always made available in nigeria for purpose of establishing and running of both forensic science laboratories and a central dna database in the country. 6. authorities in nigeria should also ensure that adequate number of the various professional personnel needed for dna profiling, dna database management, and forensic science laboratory including geneticists, dna toxicologists, molecular biologists, laboratory technologists etc are produced by the higher education systems and training centres both locally and abroad. jils (journal of indonesian legal studies) volume 4(2) 2019 215 available online at http://journal.unnes.ac.id/sju/index.php/jils references alemika, e.o. (2012), intelligence-led policing in the 21 st century, in cleen foundation (ed) operationalizing intelligence-led policing in nigeria. lagos: cleen foundation. alemika, e.o. (2012) law enforcement and order maintenance in a democratic transitional society: the challenge of the nigeria police, the nigeria police and civil society, s.g. ehindero, et al., (eds) jos: nigeria police and civil society, (143-164) alemika, e.o. (2015),challenges confronting police reform in transitional contexts, paper presented at the faculty of law, university of cape town, july 18. billings, p.r. (2012), dna on trial: genetic identification and criminal justice, new york: spring harbour laboratory press. campbell, a. (2000), forensic science. philadelphia: chelsea house. gilbert, j.n. (2014). criminal investigation. 3 rd edition, new york: macmillan gill, p., werrett, d.j. et al., (2014) all assessment of whether snps will replace strs in national dna databases, science and justice 44(1): 5153 jobling, m.a. & gill, p. (2014) encoded evidence: dna in forensic analysis, nature reviews, 5, 739-751 innocent, a.c. (2015), relevance of a dna database for solving crime in nigeria, science & justice, 48 (2), pp. 30-47 julian, r., kelty, s. & robertson, j. (2012), get it right the first time: critical issues at the crime scene, science & justice, 40 (2), 152-169 julian, r.d., kelty, s.f., roux, c., woodman, p., robertson, j., davey, a., hayes, r., margot, p., ross, a., sibly, h. & white, r. (2011) „what is the value of forensic science? an overview of the effectiveness of forensic science in the australian criminal justice system project‟. australian journal of forensic science 43(4). 217-29. kazeem, a. (2016), crime fighting: lagos established first dna forensic lab in nigeria, thisday newspaper, december 18. laurie, g. (2012), genetic privacy: a challenge to medico-legal norms, cambridge: cambridge university press. lazer, d. (2004), dna and the criminal justice system: concensus and debate, in lazer d. and meyer, m. (eds), dna and the criminal justice system: the technology of justice, cambridge, mass.: mit press nte, n.d. (2012), an evaluation of the challenges of forensic investigation and unsolved murders in nigeria, african journal of criminology and justice studies (ajsc), 6 (182), 143-162. 216 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils nte, n.d. (2011). the use and abuse of intelligence in a traditional democracy: evidence from nigeria‟, international journal of human sciences, vol. 8, n0. 1 ogle, r.r. (2004). crime scene investigation and reconstruction. new jersey: pearson prentice ojukwu, e.c.s (2011) discovering the police, ibadan: gold press ltd oladele, o. (2006), intelligence-led policing in nigeria: the way forward, in cleen foundation (ed), operationalizing intelligence-led policing in nigeria, lagos: cleen foundation. onashile, y. (2009). the nigeria police force and forensic evidence, quoted in daily champion 18 th october. o‟ neill, o. (2013) autonomy and trust in bioethics, cambridge: cambridge university press. robert, h., taupin, j. & raymond, t. (2015), the role of dna profiling in criminal investigation, http://www.aic.gov.au/media, retrieved september 10, 2018. roberts, h. (2012) „challenges to the admissibility of dna profiling evidence in criminal trials‟. australian family physician vol. 22, pp. 507-511. roberts, h., taupin, j. & raymond, t. (2015), the role of dna profiling in criminal investigation, science & justice 42(3), 1-8 technikon, sa. (1986). investigation of crime: study guide for ovm151re. florida. ugochukwu, o., amadi, g.i. &zimako, a., (2014) the need for dna database for crime management in nigeria, forensic science international 101, 72-86. van niekerk, a. (2000). the crime scene. pretoria: government printer. http://www.aic.gov.au/media jils (journal of indonesian legal studies) volume 4(2) 2019 299 available online at http://journal.unnes.ac.id/sju/index.php/jils review article misdemeanor of corruption within the scope of international law and the legal consequences ridwan arifin1, siti faridah2, muhammad naefi3 1 department of criminal law, faculty of law, universitas negeri semarang, indonesia 2, 3 faculty of law, universitas negeri semarang, indonesia  sfaridah99@gmail.com submitted: april 8, 2019 revised: august 24, 2019 accepted: august 25, 2019 abstract corruption is a threat to stability, national and international security, institutions, democracy, justice and endangering sustainable development and law enforcement. in an international perspective, corruption is classified into white-collar crime as a crime that occurs in government institutions. the paper analyses the corruption in the international law perspective. the paper is intended to examine more deep concerning to corruption in the global perspective and international law, and how are consequences into domestic law. the method used for analytical study of this paper by analyze some related theories concerning to corruption in international law perspective. the paper highlighted and underlined that corruption in the global context can be prevented by international cooperation and collaboration in many forms, one of is regional or bilateral agreement on combating corruption. keywords: corruption; international law; global context; legal consequences nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 4 issue 2, november 2019 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils mailto:sfaridah99@gmail.com 300 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 299 table of contents ………………………………...………….….. 300 introduction ………………………………………………………. 300 corruption and global impact ………………………..….. 302 i. the concept of corruption ……………….……….……. 302 ii. the danger of corruption and its losses ………... 305 international law context on corruption cases 308 i. agreement in addressing corruption cases …... 308 ii. troubleshooting and solutions offered ………. 310 conclusion ……………………………………………………..…… 311 references …………………………………………………………… 311 copyright © 2019 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. how to cite: arifin, r., faridah, s., & naefi, m. (2019). misdemeanor of corruption within the scope of international law and the legal consequences. jils (journal of indonesian legal studies), 4(2), 299-314 https://doi.org/10.15294/jils.v4i2.29687 introduction international criminal law covers international aspects both in terms of authority, administrative mechanisms and international criminal in the meaning of the material. universally, international criminal law is defined as a transnational crime. in this case, a crime that is actually a national crime that contains aspects of cross-border countries. therefore, the occurrence of the crime itself is actually within the national boundaries. however, in some respects related to the interests of other countries are mixed so that there appear to be two or more countries that have mutual interests in this matter. in practice, of course, there are many factors that lead to the related interests of more than one country in a crime. for http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 301 available online at http://journal.unnes.ac.id/sju/index.php/jils example, criminal acts of corruption, where offenders and assets resulting from corruption are stored in other countries so that they do not only cover the borders of the country concerned but also enter the territory of other countries (rumokoy, 2011). in the era of globalization, corruption has become a phenomenon of a crime involving multilateral relations (alkosar, 2009). bassiouni in his book in 1994 revealed that international criminal law is any action that can be determined in multilateral conventions and followed by participating countries. in this case, there are various kinds of international agreements that serve to prevent and eradicate criminal acts. some of these agreements include memorandum of understanding (mou), mla, extradition, and agreement on transfer of sentenced persons, etc. then what needs to be questioned is why the law of corruption in various countries looks like it is not functioning. in fact, according to barda nawawi arief, referring to criminal law policy, the main target of criminal law is not only bad deeds from citizens but also actions (in authority or power) involving the authorities or law enforcement officers (arief, 2001). corruption in many cases is caused by an abuse of power, especially in countries that have low-security stability (arifin, 2016). in this case, corruption is a universal problem faced by all countries in the world and is a complicated problem that is difficult to eradicate. this is because the problem of corruption is not only related to economic problems but also related to political issues, power and law enforcement (marsono, 2007). it has been proven, corruption is related to the economic backwardness of a country because its effects create distortions in economic activity, reduce economic growth by inhibiting foreign investment in the form of foreign direct investment (fdi), leakage of the state budget, lower tax revenues, and rampant illegal levies. susanti (2014) told that corruption is seen as a paradigmatic phenomenon or it can be said as a social phenomenon that is ingrained because it is considered a national culture (said, 2005). if equated, the culture of corruption has entered widely into the realm of community mentality and soul (sugiharto, 2005). corruption is a violation of social rights and economic rights of the community, therefore, all criminal acts of corruption can no longer be classified as ordinary crimes but rather as an extraordinary crime that must be prioritized compared to other criminal acts (nurdjana, 2009). as extraordinary crimes, corruption requires extraordinary enforcement and extraordinary measures. http://journal.unnes.ac.id/sju/index.php/jils 302 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils corruption and global impact i. the concept of corruption the term corruption comes from latin, namely "coruptio" or "coruptus", which means damage or depravity (prodjohamidjojo, 2009). literally, corruption is something rotten, evil and destructive (suherry, 2017). because corruption involves moral aspects, rotten character, and circumstances, positions in government agencies or apparatus, misuse of power in office because of giving, economic and political factors, and placement of families or groups into official positions under their authority and position (hartanti, 2012) poerwodarminto in the indonesian dictionary concluded that corruption was rotten, such as embezzlement of money, acceptance of bribes, and so on. meanwhile, baharuddin lopa quoted the opinion of david m. chalmers outlining the meaning of the term corruption in various fields, namely concerning the problem of bribery, which is related to manipulation in the economic field, and which concerns the field of public interest (hartanti, 2005). while subekti interpreted it as a self-enriching criminal act that directly endangers the country's finances and economy. corruption can simply be understood as 'the misuse of public power for private gain' (collier, 2002). in essence, corruption is a "social pathology" that damages the structure of government and becomes a major obstacle to the course of government and development (abdurofiq, 2016). further corruption is contrary to moral, legal and religious ethics. in the end, corruption is an agreement on the basis (masdar, 2003). because it is done by someone who is attached, opportunities and power are misused for real purposes (ansori, 2015). "crime" (rumambi, 2014) based on the definition of corruption as a public mandate for personal gain (daniel kaufmann and pedro c, 2002). as stated, huntington also stated this (winarno, 2002). on the other hand, lord acton argued that "power tends to be corrupt, absolute power is absolutely corrupt" (rohim, 2005). this adage as a basis gives more opportunities to make a transition on the basis of this opportunity only from the basis of authority at the time (suraji, 2008). the problem of corruption is no longer seen as a problem of a nation but also a problem of the international community (levi, 2004). united nations convention against corruption (uncac), describes the problem of corruption as a serious threat to stability, security of national and international communities, weakening institutions, democratic values and justice and endangering sustainable development and law enforcement. apart from that, being assessed through an international perspective http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 303 available online at http://journal.unnes.ac.id/sju/index.php/jils corruption is seen as a crime classified into white collar crime and has a consequence of complexity and becomes the attention of the international community. the 8th un congress on "prevention of crime and treatment of offenders" adopted the resolution "corruption in government (1990)" which formulated the consequences of corruption, in the form of: 1. corrupt public official activities: a. can destroy the potential effectiveness of all types of governmental programs; b. hinder development; and c. victimize individuals and groups. 2. there is a close link between corruption and various forms of economic crime, organized crime and illicit money laundering the assumptions above cite systemic, organized, transnational and multidimensional penalties for corruption in the sense that they correlate with systems, juridical, sociological, cultural, economic aspects between countries and so on. judging from a juridical perspective, corruption is an extraordinary crime proposed by romli atmasasmita (2003): "by paying attention to the development of corruption, both in terms of strength and quality, and after studying it in depth, it is excessive that corruption in indonesia is not an ordinary crime but an extraordinary crime" alatar as a professor of sociology from malaysia revealed that if analogous to being cancer, our corruption has reached the third stage. at this stage, a corruptor has become a victim of other corruptors. in the case of cancer, on the third stage, the only way the patient has to be amputated, if not, will pass to rahmatullah. this explanation indirectly is in accordance with the theory of differential associations. according to the differential association theory, it is explained that "a crime committed by a person is the result of imitation of a crime committed in society and this continues” (mu’allifin, 2015). in this case, it can be seen that corruption is like a social pathology that will continue so that it must be resolved immediately with the applicable law in the current society. according to piers beirne and james messerschmidt in his book criminology (1995), in the crime study there were 9 types of corruption there are: 1. political bribery. political bribery includes power in the legislature as the legislative body. politically the agency is controlled by interest because the funds spent during the general election period are often related to certain company activities. http://journal.unnes.ac.id/sju/index.php/jils 304 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. political kickbacks. political kickbacks are activities related to the contract system of contract work between executing officials and employers which gives an opportunity to bring in a lot of money for the parties concerned. 3. election fraud. election fraud is corruption that is directly related to election fraud. 4. corrupt campaign practice. corrupt campaign practice is the practice of campaigns using state facilities. 5. discretionary corruption. discretionary corruption is corruption done because there is freedom in determining policy. 6. illegal corruption. illegal corruption is corruption done by confusing legal language or legal interpretation. 7. ideological corruption. ideological corruption is a combination of discretionary corruption and illegal corruption that is done for group purposes. 8. political corruption. political corruption is a diversion of power or authority entrusted to him to gain personal or group benefits related to power. 9. mercenary corruption. mercenary corruption is misusing power solely for personal gain. corruption is no longer seen as a national problem, but a transnational problem (melani, 2005). in this case, corruption is one part of a special criminal law. if described, corruption has certain specifications that are different from general criminal law, such as procedural law deviations and regulated material intended to suppress leakage and irregularities to the country's finances and economy to a minimum. because this crime both directly and indirectly affects the quality of society's welfare. laws and regulations in indonesia that regulate corruption are now better than before with the issuance of law number 28 of 1999 concerning the implementation of a clean and free state from kkn (korupsi, kolusi dan nepotisme), law number 31 of 1999 jo. law number. 20 of 2001 concerning eradication of corruption crime, law number 30 of 2002 concerning the corruption eradication commission, and finally the ratification of the united nations convention against corruption, 2003 (united nations anti-corruption convention, 2003) with law number 7 of 2006. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 305 available online at http://journal.unnes.ac.id/sju/index.php/jils ii. the danger of corruption and its losses one of the crucial issues that must get the attention of the current government is corruption (kristian, 2013). corruption in society if it is likened to a disease, this will be difficult to cure. rais once revealed that if it is true that prostitution is the "oldest profession" then corruption and collusion can also be said to be "as old as the organization of power". corruption usually grows in a system that is rigid and full of obstacles and comes from monopoly power in government (pope, 2008). in line with this statement, klitgaard in 1998 revealed that corruption occurs because of the practice of monopolistic power where there is an opportunity to carry out large discretionary actions, but there is no adequate supervision through a performance of accountability or a system of corruption. it means corruption = (monopoly + discretion) accountability. corruption is a threat to the principles of democracy, which upholds transparency, accountability, and integrity, as well as the security and stability of the indonesian people (ancok, 2011). the internal factor of a person committing a criminal act of corruption is that it covers two things, there is corruption by needs and corruption by greed. where people take action corrupt not because of the pressure of necessity but because of the desire to live a luxurious life. external factors include an environment that supports, for example, the community's permissive attitude towards acts of corruption. besides that, there is also an opportunity to commit corruption because of inadequate supervision. according to fishman and gatti (2002), there are 4 ways to measure the level of corruption that occurs in a country (nugroho, 2012): 1. international country risk guide (icrg) the international country risk guide (icrg) version of the corruption index of the index between 0 (no corruption) to 1 (very corrupt). high scores or indices indicate that individual government officials request special and illegal payments for activities such as export-import licenses, exchange controls, charging taxes, protection policies and loans. 2. german exporter version corruption index or german corruption exporter (gci) this index was developed by neumann (1994) by calculating the proportion of payment of export levies on total costs. 3. corruption index version of the world competitiveness report corruption index (wcrci). http://journal.unnes.ac.id/sju/index.php/jils 306 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils this index measures improper practices in the provision of public goods. 4. corruption perception index (cpi). this index is issued by the international transparency organization. the index is between 0 (very corrupt and 10 (very clean). this index results from a survey of business operators in several countries. indonesia corruption watch divides the scope and scope of corruption into two major parts: grand corruption and pretty corruption. the division is seen from the differences of actors or actors, the emergence of state losses and the motives or objectives of corruption itself. in simple terms, grand corruption or high-level corruption refers to corrupt practices by people who have access to power over the country's economic resources. the motives are not because they want to improve their standard of living, but are much higher, namely how to maintain power and make a policy siding with and benefiting themselves or their groups. it is different from pretty corruption or small-scale corruption, which is the practice of corruption perpetrated by low-level employees who have access and a role in determining whether or not the public service is smooth. the motive for this type of corruption is very simple, namely how to improve the economic level of themselves and their families. in the case of corruption, which includes transnationalities, it does find many difficulties. among them are differences in the legal system adopted, bank secrecy, language, expected clarity of assistance and time, the lack of capacity of the ability of law enforcement officers, incomplete data sent to the requested state, the return of corrupted people and assets (simandjuntak, 2013). in this case, support from national and transnational governments is needed, regarding the return of assets originating from criminal acts of corruption (koesoemo, 2017). according to robinson, corruption can have an impact on the weakening of political institutions because it can damage the legitimacy and accountability of the government. the crime of corruption involving power is very difficult to prove, besides that the desire to eradicate this act is clearly in conflict with the interests of power that are very likely to involve the bureaucracy, as a result it can be predicted that this corruption seems to be "beyond the law" and as a form of action that is "untouchable by the law". the pattern and / or relation to the occurrence of criminal acts of corruption that occur in the body of government can be divided into three categories, among others (prasetyo, 2010): http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 307 available online at http://journal.unnes.ac.id/sju/index.php/jils 1. there is a form of abuse of power which is carried out by officials who have a certain authority to act on the basis of legal legality that cooperates with other parties by bribery, reducing specification standards or volume and marking up funds. this type of abuse of authority is usually of a non-political nature and is carried out by the level of officials who are not too high-ranking. 2. discretionary abuse of power in this type of abuse of authority possessed by the regional head because it has special authority, namely the legality to issue certain policies such as decrees of governors, regents / mayors or in the form of regional regulations and/or regional head regulations which usually make them cooperate with friends / groups and with their families. 3. ideological abuse of power this is done by officials to pursue certain goals and interests of the group or party. there can also be group support for certain parties to occupy strategic positions in the bureaucracy / executive institutions, where in the future they will receive compensation. corruption perpetrators are divided into two types, namely corruption committed by corruptors who occupy high office positions or known as the white collar. corruptors who occupy low levels or positions are known as blue-collar terms. corruption is usually carried out jointly between one public employee and another employee. this is because they collaborate in an attempt to manipulate the system and/or to hide the behavior and results of their corruption. the weakness of a system and the lack of transparency give rise to wide opportunities for corruption (kpk, 2016). the impact of corruption is so great and is a serious problem for the welfare of society, must be a shared responsibility of all elements of the nation without exception. therefore, this is also the responsibility of the people to join together in fighting corruption (arifin, 2014). according to benveniste, corruption can only be eliminated if the supervisors truly carry out all their duties and are unwilling to accept bribes. such a situation can only be realized if there are very adequate ideological and professional commitments. therefore, quoting from ahmad ali (2001) who said that as long as the dirty broom is not cleaned, any talk of justice will be empty. http://journal.unnes.ac.id/sju/index.php/jils 308 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils international law context on corruption cases i. agreement in addressing corruption cases the term internationalization of crime can be interpreted as the process of determining the actions of certain acts as international crimes (hiariej, 2019). according to illias bantekas and susan nash (2007), certain actions which are then declared as international crimes can be through the doctrine, practice or practice of international law. sanyal (2005) explains that there are five specific behavioral elements which if one element is fulfilled, then this behavior can be qualified as an international crime, such qualifications include: 1. prohibited behavior has a significant effect on international interests, especially peace and international security; 2. prohibited behavior is a bad act and is considered to threaten the values shared by the world community, including what has been considered by history as behavior that touches humanity's conscience. this is supported by many international opinions where international bribery must be eradicated; 3. behavior that is prohibited has transnational implications involving or affecting more than one country in its planning, preparation or actions, both through the diversity of citizenship of perpetrators of crime or victims or equipment used beyond national borders; 4. behavior that endangers the protection of international interests or against internationally protected people; and 5. this behavior violates protected international interests but does not reach the stage mentioned in the first and second points, but because of its nature, this behavior can be prevented and suppressed through international criminalization. in the international context, the majority of countries agree to collaborate in fighting corruption. international cooperation is fundamental to prevent and eradicate corruption in an effective manner (nurmalawaty, 2006). indonesia is one of the countries that has followed the development of prevention of corruption by signing several international conventions, such as the uncac (united nation convention against corruption) ratified by law no.7 of 2006 and g-20 (working group on anti-corruption-wgac). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 309 available online at http://journal.unnes.ac.id/sju/index.php/jils in the context of corruption crimes that refer to uncac, the internationalization category of corruption crimes including treaties that do not declare prohibited acts as an international crime, but require participating countries to prosecute or extradite the perpetrators of these acts based on national law as stipulated in article 30 uncac. in recent years, not a few public assets that have been successfully corrupted have been rushed and stored in financial centers in develo ped countries that are protected by the legal system in force in the country (frikasari, 2005). in this case, countries that feel disadvantaged cannot just enter the territorial territories of other countries to arrest the perpetrators of these crimes. this is because the international law applies the principle of respecting the sovereignty of jurisdictions so that there must be prior approval from that country. this is based on the general principle of international law that each country has sovereignty that must be upheld. the commitment of the international community to tackle transnational crime through international cooperation can be seen from international legal instruments that were born lately. for example, the palermo convention in 2000 which mentions several forms of international cooperation that can be carried out by the international community, namely: extradition agreements, mutual legal assistance in criminal matters, transfer of sentenced person. the un has even issued a treaty on extradition model based on un general assembly resolution number. 45/117 dated december 14, 1990, which can be used as a model for international cooperation and also regulated in the 2003 united nations convention against corruption which specifically regulates asset recovery from corruption. the emergence of this extradition agreement is certainly inseparable from the implementation of the principle of international law as conveyed by hugo grotius, namely the principle of a degree as pure. which means that the trial of the perpetrators of the crime can be carried out by the country where the crime occurred or extradited to the requesting country that has jurisdiction to try the perpetrator (syarifudiin, 2016). in history, extradition is recognized as a mechanism in preventing and combating transnational crime or transnational crime. the extradition treaty is a bilateral agreement that regulates the process of arrest, identification, and the sending of perpetrators of crimes in a jurisdiction of a country to another country that asks the perpetrator of the crime to be tried at the place where the crime is committed. because, based on the principle of specialty that a criminal offender cannot be tried before the person is extradited, unless there is an agreement. and if the person requested has been submitted, the applicant country may only try http://journal.unnes.ac.id/sju/index.php/jils 310 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils or punish the person requested based on the crime for which extradition is requested. following is the legal basis for extradition: 1. national legislation 2. extradition agreement 3. international conventions 4. international student order or disguised extradition this is because the problem of corruption is now entering crossborder boundaries, this is stated in the fourth paragraph of the preamble of the uncac (department of foreign affairs, 2008): "convince that corruption is no longer local, but it is a transnational phenomenon of all societies and economies, making international cooperation to prevent and control it essential" ii. troubleshooting and solutions offered law enforcement is a supporting factor in legal development, while legal development is a component that cannot be separated from national development. broadly speaking, law enforcement is the implementation of the life of the nation and state in order to create order and legal certainty oriented to justice. in a narrow sense, law enforcement can be interpreted as a series of activities in a preventive, repressive and educative judicial system (santi, 2016). preventive actions are relatively easier, cheaper, and contain less risk than repressive actions. far-reaching preventive actions in crime prevention efforts (erdianto, 2014) through the "crime prevention approach" method. preventive action is understood as an effort to reduce crime by preventing the crime (amrani, 2014). while educational action leads to an increase in the quality of understanding of the concept of anticorruption through the education system. educational institutions are the best and strategic place to instill and disseminate anti-corruption values by mentoring mentally, spiritually or morally (handayani, 2009). optimizing corruption eradication must be followed up with a comprehensive strategy to achieve maximum results. this comprehensive strategy covers various aspects, including (waluyo, 2016): a. increased integrity and ethics of state administration; b. strengthening and accelerating bureaucratic reform; c. strengthening the anti-corruption culture of the community; and d. a firm, consistent and integrated law enforcement. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 311 available online at http://journal.unnes.ac.id/sju/index.php/jils besides that, efforts to eradicate corruption that have been carried out so far still tend to lead to prosecution rather than prevention efforts that are focused on increasing public awareness, especially state apparatus in anticorruption behavior. so, with this, it is hoped that a clean and free government from corruption will be created. these efforts can be done through upgrading or counseling, seminars, workshops, etc. conclusion transnational crime is a crime that contains cross-country aspects. this is due to differences in interests in various regions. an example is a corruption. corruption arises because of the abuse of power. however, there are also those who argue that corruption is a culture. in this case, the problem of corruption has become a problem for the international because it relates to national boundaries. there are two factors that driving someone to commit corruption, there is corruption by needs and corruption by greed. in addition, according to the theory put forward by klitgaard, corruption is due to the practice of monopolistic power, with the opportunity to carry out considerable discretionary actions, but there is no adequate supervision through the performance of the accountability system. besides that, corruption is a threat to the principles of democracy, which upholds transparency, accountability, and integrity, as well as the security and stability of the indonesian nation and also has an impact on weakening political institutions because it can destroy the legitimacy and accountability of the government. in faced a serious problem like this, according to benveniste corruption can only be eliminated if the supervisors truly carry out all their duties properly and are unwilling to accept bribes. this can only be realized if there is a very strong ideological and professional commitment. to support it all, a juridical (legal) foundation is needed to regulate the society. one of them is through international law and convention. international cooperation is a concrete solution in preventing and eradicating corruption. one form of implementation is that indonesia plays a role in the uncac international convention (united nation convention against corruption). references abdurofiq, a. “political law ratifies the united nations anti-corruption convention in indonesia”, legal journal, 2016, 4(2): 188. ali, ahmad. the deterioration of law in indonesia, the causes and solutions. jakarta: ghalia indonesia, 2001. http://journal.unnes.ac.id/sju/index.php/jils 312 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils alkosar, a. “correlation of political corruption with law and government in modern countries”, law journal, 2009, 16(1): 158. amrani, h. “efforts to eradicate corruption with the anti-money laundering regime: international perspective”, journal of law prioris, 2014, 4(2): 160. ancok, d. corruption: a bit of psychological vision. yogyakarta: applied psychology, 2011. ansori. “law criminal enforcement acts of corruption in the perspective of human rights”, rechtsidee, 2015, 2(2): 82. arief, barda nawawi. some aspects of criminal law enforcement and development policy. bandung: citra aditya bakti, 2001. arifin, ridwan. “analysis of international law in asset deprivation in southeast asian nations based on the united nations convention against corruption (uncac) and the asean mutual legal assistance treaty (amlat)”, legal research journal, 2016, 3(1): 38. atmasasmita, r. introduction to international criminal law. bandung: refika aditama, 2003. bantekas, illias and susan nash. international criminal law. new york: routledge cavendish, 2007. beirne, piers and james messerschmidt. criminology 4th edition. oxford: oxford university press, 2005. collier, m. “explaining corruption: institutional choice approach”, crime, law & social change, 2002, 38(1): 01. daniel, kaufmann and pedro c. “legal corruption”, economics and politics, 2002, 23(2): 2. department of foreign affairs. uncac (united nations convention against corruption). jakarta: indonesian ministry of foreign affairs republic of indonesia, 2008. erdianto. “reviewing the corruption crime actors' policy”, journal of law, 2014, 4(2): 240. frikasari, f. “business crime in the indonesian criminal law perspective”. journal of legal litigation, 2005, 6(2): 202. handayani, t. “education corruption and development in indonesia”, indonesian population journal, 2009, 4(2): 16-17. hartanti, e. 2005. corruption crime. jakarta: sinar grafika, 2005. __________. 2012. corruption crime. jakarta: sinar grafika, 2012. hiariej, eddy o.s. “united nations convention against corruption in the indonesian legal system”, mimbar hukum, 2019, 31(1): 114. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 313 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesia corruption watch. "corruption and poverty", online article, 2019, retrieved from www.antikorupsi.org accessed on march 27th, 2019 at 6.40 p.m. koesoemo, c. “the existence of the corruption eradication commission (kpk) in handling investigation and prosecution of corruption crimes”, lex crimen, 2017, 6(1): 62. komisi pemberantasan korupsi. impact of social corruption. jakarta: dppm, 2016. kristian. “eradicating corruption and political will in indonesia”, defense journal, 2013, 3(1): 37. levi, et al. tracing and recovering the proceeds of crime. wales: tbilisi georgia cardiff university, 2004. marsono. “eradicating corruption in indonesia from the law enforcement perspective”, development management, 2007, 2(58): 57-62. masdar. corruption fiqh: trust vs. power. mataram: somasi ntb, 2003. melani. “problematic principle of double criminality in its relationship with collaboration on the prevention and eradication of transnational crimes”, journal of legal litigation, 2005, 6(2): 169. mu’allifin, m. “problems and eradication of corruption in indonesia”, ahkam, 2015, 3(2): 314. nugroho. “corruption and the affecting factors in indonesia”, media economics and management, 2012, 26(2): 21. nurdjana. criminal legal system and latent danger of corruption (problems with the criminal law system and its implications for corruption law enforcement). yogyakarta: total media, 2009. nurmalawaty. “factors causing money laundering and prevention measures”, equality journal, 2006, 11(1): 16-17. pope, j. strategy to eradicate corruption. jakarta: ti indonesia, 2008. prasetyo, n. guaranteed position and functions of the commission on state commission in the constitution. jakarta: journal of the constitutional court of the republic of indonesia, 2010. prodjohamidjojo, m. application of reverse proof in corruption delegation (law no. 31 of 1999). bandung: mandar forward, 2009. ridwan. “the efforts of corruption prevention through community participation”, kanun journal of legal sciences, 2014, 16(64): 385. rohim. modus operandi crime corruption. depok: pena mukti media, 2005. rumambi, d. “corruption in the state administrative law perspective”, lex et societatis, 2014, 2(7): 107. http://journal.unnes.ac.id/sju/index.php/jils http://www.antikorupsi.org/ 314 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils rumokoy, n. “the function of the international criminal law is related to transnational crime specifically to corruption crimes”, law journal, 2011, 19(4): 1-2. said, s. “anti-corruption law enforcement”. journal of democracy, 2005, 2(7): 64. santi. “implications of pluralism in the authority of investigators in the settlement of corruption crimes”, diponegoro law journal, 2016, 5(3): 2. sanyal, rajib. “determinants of bribery in international business: the cultural and economic factors”, journal of business ethics, 2005, 5(9): 139. simandjuntak, m. “mutual legal assistance”, mmh, 2013, 42(1): 138. sugiharto, r. “drilling unlimited wells”, journal of democracy, 2005, 2(7): 68. suherry. “the politics of eradicating corruption in indonesia”, journal of government science, 2017, 7(1): 47. suraji. “a long history of corruption in indonesia and its eradication efforts”, journal of public policy and administration, 2008, 12(2): 137. susanti, i. “reflections on legal studies in the analysis of law enforcement in eradicating corruption in indonesia”, journal of legal dynamics, 2014, 14(1): 126. syarifudiin. “the relevance of law no. 1 of 1979 concerning extradition with the development of international extradition laws”, legal communication journal, 2016, 2(1): 2. waluyo, b. law enforcement in indonesia. jakarta: sinar grafika, 2016. winarno. contemporary global issues. yogyakarta: caps, 2002. http://journal.unnes.ac.id/sju/index.php/jils attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf2391bf442037 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare 1 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol i issue 01, 2016 volume 2 issue 01 may 2017 jils 2 (1) 2017, pp. 1-2 issn 2548-1584 e-issn 2548-1592 editorial editor in chief commentary human rights in indonesia: a never ending topic dani muhtada universitas negeri semarang (unnes) human rights become very important issues that attract a lot of attention from people and organizations around the world nowadays. governments need to work and collaborate with other actors, including civil organizations and the third sector, to ensure that human rights are properly enforced in the society. one of the basic instruments to ensure the enforcement of human rights is through state constitutions. the constitutions should consist of explicit articles that promote the enforcement of human rights. once the constitution has included articles on human rights, it is the government’s obligation to make sure that the message of constitution can be realized. however, some issues and problems might come up in the process of keeping human rights enforced in the society. the journal of indonesian legal studies (jils), in this second journal edition, provides some contemporary insights on human rights from various perspectives. the jils’s second edition highlights some issues concerning on human rights in the frame of the various aspects of human rights in indonesia. the articles presented in this special issue make many important explorations and draw our attention to many important policy questions. nowadays, we can see that law and human rights have a significant implication on national legal systems throughout the world, including in indonesia, and therefore have also influenced on the daily works of judges, prosecutors and lawyers in any given country. some contemporary cases show us that the problems of human rights still exist and needs a proper response. one of the articles, written by ristina yudhanti [et.al.], discusses the protection to victims of violence based on gender as fulfillment of the http://journal.unnes.ac.id/sju/index.php/jils 2 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang dani muhtada jils 2 (1) may 2017, 1-2 http://journal.unnes.ac.id/sju/index.php/jils constitutional rights. in the article, the authors discuss the fulfillment of human rights for the victims of violence in the district of boyolali, central java, indonesia. another article, written by melissa towadi, highlights the protection of human rights to the minority muslim in rohingya, burma. the author emphasizes the focus on the indonesian-malaysia cooperation on the protection of muslim rohingnya. another view on the fulfillment of human rights is provided by arif prasetyo, who writes an article entitled waiting list patterns in the implementation of hajj: the fulfillment of the rights of the congregation (study of central java province, indonesia). i would like to express my gratitude to all authors who have submitted manuscripts for this second journal edition: aninditya eka bintari sh, mh, ristina yudhanti sh mh, saru arifin sh llm, fauziah rismadini, auria patria dilaga sh mh, arif praseto sh, mellisa towadi sh mh, and muhammad ikhsan lubis sh mh. my special thanks go to all members of the editorial management of the journal of indonesian legal studies, postgraduate program, faculty of law universitas negeri semarang (unnes): mr. ridwan arifin sh llm (managing editor of jils), mr. fendi setyo harmoko amd, and ms. alifah karamina se (boards of administration of jils). i have to express my gratitude to all of the members of the editorial board of this second edition: prof. sudijono sastroatmodjo msi (universitas negeri semarang), assoc. prof. dr rodiyah spd sh msi (universitas negeri semarang), dr markus hage sh mh (university of nusa cendana kupang), dr nur rochaeti sh mhum (university of diponegoro, semarang), dr. eric a jones (northern illinois university, usa), nehginpao kipgen (jindal global university, india), and also dr. philips j vermonte (center for strategic and international studies, jakarta). finally, we very hope that this second edition will not only trigger further discussion on the issues of human rights, but also encourage the discussion on other topics that are crucial for indonesia’s legal development. accordingly, journal of indonesian legal studies will be always committed to become an academic medium to exchange ideas and perspectives on contemporary issues related to indonesian legal studies. semarang, central java, indonesia dani muhtada, m.p.a., ph.d. faculty of law, universitas negeri semarang journal of indonesian legal studies (jils) jils@mail.unnes.ac.id, dmuhtada@mail.unnes.ac.id http://journal.unnes.ac.id/sju/index.php/jils mailto:jils@mail.unnes.ac.id mailto:dmuhtada@mail.unnes.ac.id 85 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 volume 2 issue 02 november 2017 jils 2 (2) 2017, pp. 85-100 issn 2548-1584 e-issn 2548-1592 policy of development for juvenile delinquency in the perspective of indonesian criminal justice system reform (study on institute for special development children lpka kutoarjo, central java, indonesia) y. dika tyas wangi 1 y. dika tyas wangi postgraduate program, faculty of law, universitas negeri semarang  sevindikamaulana@gmail.com article info abstract submitted on may 2017 approved on august 2017 published on november 2017 one of the functions of penitentiary institution becomes an institution that basically conducts guidance to socialize the convicts back after the court decision. but in the perspective of society that prisons are a place to punish people and form a negative image in society. the succession of the children's penitentiary to become lpka (lembaga pembinaan khusus anak) based on law no.11 of 2012 seeks to change the perception of child counseling in the institution that fostered delinquency children. but erasing the image in the community is not easy in the short term to understand the community about the function of lpka. thus raises the issue of juvenile delinquency development policy after the court decision that can be done by lpka. therefore, it is necessary to have policies that can be felt by the assisted citizens with special forms of protection for the children one of them is by way of mental, spiritual, and social guidance for the children in the institute for special development of children (lpka). this paper discusses two important points, namely: first how is the policy of lpka kutoarjo in conducting development of juvenile delinquency, and second, what is the policy that should be towards the development of juvenile delinquency in the future. keywords: juvenile delinquency, children, penitentiary, policy development. 1 i would like to express my great thankfulness to professor sudijono sastroatmodjo, msi and dr ali masyhar sh mh from postgraduate program, master of laws, faculty of law, universitas negeri semarang who have constantly give me many inputs for my thesis. mailto:sevindikamaulana@gmail.com 86 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang y. dika tyas wangi jils 2 (2) november 2017, 85-100 http://journal.unnes.ac.id/sju/index.php/jils introduction the rise of crime in this era of globalization is of course troubling the public. the number of crime in the middle of society such as theft, murder, rape, and other crime to make people disturbed in life and daily tranquility. this of course should not be left alone, because people also need comfort, tranquility, and security in carrying out daily activities. along with the globalization of culture and the advancement of science and technology, shows that human behavior in the life of society and state increasingly shows the waning of virtue both mentally and socially. such behavior when viewed from the side of the law of course there is behavior that is not in accordance with the norm. behavior that is not in accordance with the norm of course can cause problems in the field of law. therefore, law enforcement is done through legal instruments by way of prevention efforts either preventive or repressive which can be called as penal policy. that is by way of legal approach that is to file a trial and then a criminal punishment to a person who commits a crime. on the other hand the influence of global culture, the advancement of science and technology, and the development of the era which resulted in the violation of law and get legal sanction not only involve adult but now also involving children as perpetrator of crime or in legal term referred as juvenile delinquency. children who commit criminal offenses are generally trapped in a pattern of consumerism that ultimately leads to criminal acts, such as murder, theft, rape and other unlawful acts. criminal acts committed by children are not only seen by children as pure perpetrators, but in other perspectives these children are also victims of the progress of science and technology, unfavorable environment, and family role factors where children come from. violations of laws that tend to be done by children, when getting legal sanction from the state will also cause the effect of the society as well as possible from the model of applying the treatment of guidance in the penitentiary institution. this is what makes a dilemma in the implementation of child counseling is problematic with law. understanding in the psychological and social aspects can actually be understood that the child is not an adult miniature, so that in the treatment of the law both criminal penalty and post-imposition of the law treated as an adult. basically a child in a violation of the law has a background and motives that are different from the criminal offense of adults. children have different conditions that are different from adults with mental and physical conditions are unstable then the child requires special treatment and protection, especially on the development of the child itself. thus, it is necessary to implement the treatment of children after the imposition of crime with the pattern and coaching policy in accordance with the characteristics of the child's own development. 87 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 discussing of children facing the law, the current protection of children has been given by the government, one of which is by issuing legislation aimed at the best interests of the child, such laws and regulations are law no. 4 year 1979 on child welfare, law no. 11 year 2012 on the criminal justice system of children, and law no. 23 of 2002 jo law no. 35 of 2014 on child protection. in article 1 (2) of law no. 11 of 2012 on the criminal justice system of children affirms that the child in conflict with the law is a child who conflicts with the law, the child who becomes the victim of the crime, and the child becomes the witness of the crime while article 1 point 3 states that children in conflict with law hereinafter referred to as children, are children who are 12 (twelve) years old, but not yet 18 (eighteen) years of age suspected of committing a crime. developing countries of the world including indonesia have ratified the conventions on the right child that have been ratified in 1990 to become an international instrument. the reference or guidance of the state and government in handling cases of children who committed criminal acts which contains about child coaching or development, the age limit of children who commit a crime, and the limits of child detention. on the other hand, in practice, the number of children facing the law currently undergoing guidance at the institute for special child development (lpka) is currently, based on data that researchers took from the directorate general of penitentiary affairs of the ministry of law and human rights, the number of children convicted in 2013 is 3335 children, in 2014 amounted to 2658 children, and in the year 2015 was 2735 children. based on the data explain the number of criminal children be hereditary that mean necessarily prove that the program of coaching a successful criminal child (directory of general penitentiary [dirjenpas]). efforts of various parties including the government of the republic of indonesia itself has been aware of the problems facing indonesian children then made efforts to improve laws and regulations related to children who are involved with legal issues. law relating to child protection stipulated such as on law no. 11 of 2012 on child criminal justice system. article 85 is by fostering children in lpka where children who commit crime are accompanied and nurtured and equipped with skills, so with the law of this litigant, of course we are talking about the implementation in the field which sometimes have not made the device of this law fully can restore the value of the child as the future of the nation's generation. implementing coaching for juvenile delinquency in indonesia is found in 20 institutions special child development (lpka) spread in various regions of indonesia province, among others, one of them is in lapas anak in kutoarjo, purworejo district, central java province. the special child development institution numbering 20 based on law no.11 of 2012 on child criminal justice system and kemenkumham decree no.m.hh.06.ot.01.01 / 2014, has been declared in august 2015, namely that the institute for special development of children (lpka) is as an institution that foster children litigation or juvenile 88 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang y. dika tyas wangi jils 2 (2) november 2017, 85-100 http://journal.unnes.ac.id/sju/index.php/jils delinquency. the problems on this paper were concerning to, first how is the policy of lpka kutoarjo in conducting development of juvenile delinquency, and second, what is the policy that should be towards the development of juvenile delinquency in the future. policy development of juvenile delinquency in lpka kutoarjo, indonesia: perspective of penal policy policy is derived from the policy or politiek (taken from the dutch) is defined as a series and the principle that becomes an outline in the planning of a job, leadership, and an organization or way of acting, in this case of a policy not stand alone but followed by things related to a job. the policy in handling juvenile delinquency guidance is the penal policy. the definition of penal policy in legal terms can be understood as a policy of reform of criminal law. this understanding can be reflected on the pattern of child development policy in lpka kutuarjo. according to marc ancel mentions that the penal policy is a science at once, or art that allows a rule of progressive law formulated therein, so as to achieve a certain goal. 2 while sudarto formulates that the policy is an attempt to realize good with good conditions in accordance with the circumstances and situations at that time, and as crime prevention. thus formulate how to try to formulate legislation well. political criminal law or penal policy is an activity that was preceded in the determination of criminal acts and sanctions provided. thus, the determination and imposition of sanctions is carried out with serious consideration, in the hope that criminal law can serve to protect the interests of the state, perpetrators, and victims. in addition, the penalty of the essence of the policy is part of the protection of the community, as well as the part of the social, political policy that can be interpreted as an update to promote the interests of society. policy that promotes the welfare of children and restorative was used as a reference and guidance on the implementation to develop children in lpka kutoarjo. policies that are used as guidance in fostering certainly do not ignore the sense of humanity and the best interests of children. criminal guidance policy within the child development institution may also provide an opportunity for a criminal child to actively build interactions between the victim, the victim's family, and the community in resolving the conflict. so it needs to be emphasized the awareness of the parties to forgive each other and seek the best alternative not only consider punishment not as a form of 2 barda nawawi arief, kebijakan penanggulangan kejahatan: seminar kriminologi vi (semarang: undip, 1991), 4. 89 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 revenge but fostering children is in the best interest of the child. one of the policies applied in developing children in lpka kutoarjo as follow. age limitation for children (age already 21 years old) as we all know in the regulation of juvenile justice system no. 11 year 2012, about child criminal justice system is that children who are in institution of child development should be maximal age until 18 year. however, in developing juvenile delinquency in lpka kutuarjo keeps juvenile delinquency up to 20 years old in lpka kutuarjo, the institution has its own policy of why keep maintaining child fostering in lpka. in lpka there are 2 children who have 20 years old who have been sentenced to criminal penalty 8 years, with the verdict of premeditated murder in accordance with article 340 of the criminal code a separate consideration for the institution to move this is caused by some factors such as the end of child crime within the lpka, in removing the child from lpka to the adult prison, and psychological children, therefore based on these policies the leadership of lpka still maintain the child to remain able to be nurtured until his criminal time is over. gender policy between boys and girls the children who were trained in lpka kutuorjo consisted of 75 men and 3 women, but they did not live within the same block but they were nurtured in the same building. this is oriented because there is no institution of women's children in central java so as to foster male and female students is done by lpka children, but in fostering children is not distinguished between protégés and protégés are just the same how to treat it 3 and there is no big problem when fostering boys or girls because we are treated equally undifferentiated. 4 but it should not be in the same building but in a different building to prevent things that are not desirable should women protégés or girls who commit a crime have a separate coaching institution as well as adults who have a special woman 5 , it is certainly anyhow the treatment of male protégés with women protégés certainly have a different portion, very unfortunate if the child of a woman who commits a criminal act does not have a separate child development institution and in coaching is not one with male protégés. 3 nr one of child on lpka kutuoarjo, author interview at lpka kutuoarjo on november 26, 2016 4 bambang ts , chief of section on children development, author interview at lpka kutuoarjo on october 6, 2016 5 rony, chief of prison lpka kutoarjo, author interview at lpka kutuoarjo on november 26, 2016 90 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang y. dika tyas wangi jils 2 (2) november 2017, 85-100 http://journal.unnes.ac.id/sju/index.php/jils escort detainee (tahanan pendamping, tamping) tamping (tahanan pendamping) or companion detention/escort detainee is a policy within lpka kutoarjo which is decided jointly by the leadership within lpka who elect in the kitchen, assisting in the office and assisting the homeless or wardens, and assisting the janitor. in determining tamping then the leader sees the child in the activity and deserves to be given as tamping 6 , and for the child would get a trust and spur for the better. the policy with the presence of escort detainees in lpka kutoarjo help handling their friends in lpka since lpka will be more manageable when they own theme which reminds or reprimand when the friend make mistake, it is not inconvenient officers tamping abusive trust officers like run from lpka, therefore in choosing tamping reviewed in various aspects and leadership decisions. 7 skills and manpower development development of skills or training of child laborers in lpka kutoarjo aims to keep children in lpka still able to develop their talents and interests both painting, music, karawitan (music from java) and children are also equipped with labor training such as batik, gardening, raising, such as making souvenirs. it is also felt effective by the students in lpka kutoarjo because as a repellent of saturation and the child can still channel his talents and interests, in addition to the work of children in lpka then sold to people who visit into lpka. development as well as self-employment training carried out every day friday to saturday at 08.00-10.00 or even not infrequently children in lpka get visits or entertainment from various related agencies to add information to children in lpka, even when there is competition among institutions of children in lpka involved in following the competition this is done in order although in the lpka the child can still develop the talent of interest and skill so that the child can still work independently. hour visit policy at lpka kutoarjo the visit of parents or family is one of the most important support for children who are undergoing guidance in lpka kutuorjo, parents or family visits in lpka kutoarjo held in every day starting at 11:00 to 15:00, where the visit of family or relatives are able to strengthen the child that the child not alone. in addition to family visits lpka kutoarjo party also provides an 6 bambang ts , chief of section on children development, author interview at lpka kutuoarjo on december 3, 2016 7 nr one of child on lpka kutuoarjo, author interview at lpka kutuoarjo on november 26, 2016 91 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 opportunity for children to communicate with the family via telephone or mobile phone but through the officer or teacher foster care. thus, the implementation of child development policy in the future will be done by approaching the children through policy with humanistic and familial approach in accordance with the condition and situation of the child in the current prison by prioritizing either the social policy in value or the law policy itself in fostering children in lpka. with the regulatory reform in conducting guidance on delinquency children, it is hoped that children who are in the form of guidance can realize their mistake and later return in society so that prison is not only as a place of revenge or bad stigma toward children but how the child is nurtured and returned to become an obedient child law and devotion to the state, therefore all parties play an active role so that the crime rate committed by children can be reduced. future policy development of juvenile delinquency: perspective of criminal justice system reform criminal justice system reform on juvenile delinquency can be said to be a reform of criminal law. reform of criminal law according to barda nawawi arief, mentioned as follows: “the meaning and nature of the reform of penal law is closely linked to the background and urgency of the renewal of the criminal law itself.” legal reform (criminal) in essence implies, an attempt to reorient and reform the penal law in accordance with sociopolitical central values, sociophilosophical, sociocultural indonesian society based on social policy, criminal policy and law enforcement policy in indonesia briefly it can be said that the reform of criminal law in essence must be pursued with a policyoriented approach as well as a value-oriented approach). 8 based on this, it can be said that the renewal of guidance for a criminal child is part of the criminal law reform. criminal law reform is essentially an attempt to review and reorient (reorient and re-evaluate) the socio-political, socio-philosophical, socio-cultural values that underlie and contribute to the normative and substantive content of the intended criminal law. the philosophical value of the indonesian nation is pancasila so that the reform of the national legal system should ideally be based on pancasila. according to barda nawawi arief, if further elaborated, then the national legal system is a national legal system based on three pillars/value of pancasila balance, namely: 9 8 barda nawawi arief, bunga rampai kebijakan hukum pidana perkembangan penyusunan konsep kuhp baru (jakarta: kencana prenada media group, 2008) 25. 9 barda nawawi arief, pembangunan sistem hukum nasional, kuliah umum pada program magister ilmu hukum, pascasarjana ubh, padang, 16 mei 2009. retrieved from http://bardanawawi.wordpress.com. 92 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang y. dika tyas wangi jils 2 (2) november 2017, 85-100 http://journal.unnes.ac.id/sju/index.php/jils a) oriented to the values of godhead (religious moral) b) oriented to the values of humanity (humanistic) c) oriented to the values of society (oriented justice and nationalism) starting from that then the guidance of the criminal child should be oriented on the value of godhead, oriented to the value of humanity, oriented to the value of the community. the formation of a criminal child should be oriented to the divine value because it is a form of devotion to god almighty. children (including a criminal child) should be regarded as a mandate that must be guarded and is the responsibility of parents, family, community and government and country. renewal of fostering of criminal children in order to realize the best interests for children must also realize restorative justice. john braithwhite proposes restorative justice as a process whereby all parties to a particular breach together collectively resolve how to deal with the consequences of the offense and the implications of the future pattern of child development 10 in restorative justice is one example of the policy used in system reform child criminal justice, where restorative justice promotes the welfare of children in lpka. if talking about reform of child development certainly cannot be separated from child criminal court system where child criminal justice system is a system that work from stage of police until institution special child development have their duty and function. the criminal justice system also regulates how the child coaching as stated in law no.11 of 2012 article 85 is: (1) children sentenced to imprisonment are placed in lpka (2) the child shall be entitled to receive training and supervision education and training (3) lpka is obliged to provide education, coaching skills training and fulfillment of children’s rights in accordance with the laws and regulations. the development of children in lpka kutoarjo has been implemented in accordance with the rules that apply in accordance with the law on child criminal system, in which is the guidance of education, skill and fulfillment of children's rights in lpka kutoarjo which is done periodically. the development of a criminal child must have a program that must be able to humanize the child, nurture, nurture, guide the criminal child. therefore, the guidance of children in lpka is oriented towards the welfare of children because the child welfare approach by prioritizing the child's future approach is also in line with the approach taken. the policy of doing one of the children in the lpka regulated in the criminal justice system is restorative justice where as a modern and more humane model of coaching 10 john braithwaite, restorative justice & responsive regulation (new york: oxford university press inc, 2002) 45. 93 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 emphasizes the recovery or compensation of victims rather than the punishment of the perpetrator. 11 future policy development of juvenile delinquency the kutoarjo special child development institution (lpka) is the largest coaching institution in central java among the institute for child development in several other cities in central java. kutoarjo child development institution in addition to functioning as a coaching organizational institution in general is also specifically oriented to the character of development. 12 definition is intended that the child as a target object, also at the same time placing the child as a specific target, which means the results its development children can understand to responsible mistakes that will be expected to be able to return to society in accordance with the norms. the results of data collection on the state of kutoarjo child development institution quantitatively currently accommodate 78 children, with various cases facing the law. thus addressing the increasing crime of the child is one of the efforts in reacting that is by way of guidance on children who have received a permanent court ruling and submitted to lpka kutoarjo. in accordance with the provisions of law no.11 of 2012 on the criminal justice system of children in accordance with article 81 children who can be sentenced to criminal are: (1) a child convicted of a crime in lpka if the circumstances and actions of a child will harm the public. (2) imprisonment imposed on a child at least ½ of the penalty of an adult. (3) guidance in lpka only until the child is 18 years old lpka kutoarjo has conducted in accordance with the regulations of children who are built in lpka kutoarjo is a child who performs acts, murders, theft, abuse and acts that disturb the community so that there is a need for guidance on the child. 13 fostering a child who commits a criminal offense requires coaching to encompass a wide range of fields that will later improve morale, mental, spiritual, intellectual, and legal compliance. the purpose of moral, mental, spiritual, intellectual, and legal obedience is the implementation of coaching by various ways of coaching approach which is manifested by various activities both in the aspect of spiritual, social, and skill, so that children have aspect of recovery of competence as stated in system coaching. 11 stewart asquith, children and young people in conflict with the law (london: jesica kingsley publeshers, 1996) 168, on abiantoro, 147. 12 unicefand criminology studies center, faculty of social and political science, universitas indonesia, 2006-2007, 225 13 interview with gayatri, chief of children development, author interview on lpka kutoarjo september 7, 2016. 94 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang y. dika tyas wangi jils 2 (2) november 2017, 85-100 http://journal.unnes.ac.id/sju/index.php/jils carrying out children development, legislation required as a basic guideline for implementation, or guidelines for officers, so that the purpose of coaching can run well. this is in accordance with article 2, law no. 12 of 1995 concerning the constitutional system jo law no. 11 of 2012 article 85 which essentially explains about the principles of development 14 as well as the right of the child to get coaching and mentoring services during the period of coaching in lpka. the principles of guidance referred to in the law are as the basis for the implementation of the form of guidance to the students in lpka. form of development based on principles in accordance with the law of correctional means is as follows. development based on the assistance principle (pengayoman) understanding the principle of intended pengayoman that is the treatment of the assisted citizens, and correctional in order to protect the child when in lpka. thus this principle is implemented for the benefit of protecting the public in general, including also pengayoman to children who commit criminal acts fostered in lpka. therefore, they must be protected so that the child assisted to get a sense of security. basically so far according to some sources of information developed in the community have the assumption or stigma about lpka as a revenge places. 15 assuming that will harm the targeted children so that children who are in lpka will be affected the assumption. to that end, the targeted children should get the same guidance as they are in their own family. the background of children in lpka must come from different social statuses and with various backgrounds, not even the children from the street, or the various pressures that cause the child to commit a crime. with such conditions it is necessary to apply the principle of pengayoman and familial approach so it is expected that the child will realize the mistake done and not repeat the same mistake. development based on the principle of treatment equation, and service (persamaan perlakuan dan pelayanan) understanding the principle of equality of treatment and service means that prisoners shall receive equal treatment and service and without distinction or discrimination. 16 understanding the treatment and service without discriminating the practice of the existing guidance services in the lpka can treat the targeted citizens with the provisions that have been outlined about the principle of treatment, and perform the duty of serving the 14 nasriana, perlindungan hukum pidana anak di indonesia (jakarta: pt raja grafindo persada, 2007) 153 15 gatot supramono, hukum acara pengadilan anak (bandung: pt refika aditama, 2012) 117 16 nasriana, op.cit, 157 95 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 citizens built with no view of social status, and acts punishment that has been done by students in lpka. the status of these guarded children is from various social backgrounds, even from the streets, but this does not become an obstacle for officers to coach children in lpka. implement the principle of equality of treatment and service is proven when the child made a mistake, then the child gets the same sanction. in other cases such as the health services of the assisted children when the child is ill, the lpka immediately provide health services in such a way as to immediately bring a doctor or at least bring in medical personnel in accordance with the level of illness of the citizens that is needed doctors or enough medical personnel. this is contained in law no.11 of 2012 on child criminal justice system article 84: (2) the child is entitled to receive services, maintenance, education, assistance and other rights contained in the applicable laws and regulations. thus the principle of treatment and service that is included in the provisions of the principles of guidance of children in lpka has been fulfilled both from a formal juridical point of view and from the sociological aspect. the formal juridical aspect is intended that the coaching implementer has fulfilled the provisions of the law on child coaching in lpka, while the sociological aspect namely the implementation of guidance using the considerations of social aspects and without eliminating the humanitarian aspect or without distinguishing the background of the social status of the assisted people, and background aspects of the cases held by the assisted citizens. thus the understanding of the principle of treatment and service has been fulfilled in the development of children in lpka kutoarjo. development based on education principle the principle of education is intended to enable prisoners to obtain services in the field of education. implementation of child coaching in lpka kutoarjo has done the principle of guidance in terms of obtaining han education. children who are undergoing criminal, of course children in the age of education which means the child should still be a school. because the child violates the law and has decided to undergo punishment in lpka then the child will experience the compulsory education or school. compulsory education is proclaimed by the government is the most important part for children to get educational services even though in the status of being serving a penalty in lpka. this is in accordance with the child criminal justice system law article 85 point 3 of which lkka shall provide education, training and other rights fulfillment in accordance with prevailing laws and regulations 96 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang y. dika tyas wangi jils 2 (2) november 2017, 85-100 http://journal.unnes.ac.id/sju/index.php/jils thus the status of children in terms of learning children are entitled to get education. lpka as a coaching institution of children who are dealing with the law and status under coaching (dalam pembinaan) in lpka kutoarjo still get education service. education services in lpka kutoarjo held every monday to thursday at 08.00until 11:00 o'clock. implementation of educational services in lpka kutoarjo has been working with the education office of purworejo district to carry out education by organizing learning and teaching activities. form of teaching and learning activities that are implemented in the lpka is by modeling the process of teaching and learning with the package chase system. the chase system of this package is implemented by the field of off-school education which is usually called skb or learning activity sources. learning and teaching activities organized by lpka kutoarjo technically invite tutors from skb or tutors appointed by the education office of purworejo district to carry out teaching and learning process at lpka. teaching and learning activities undertaken by lpka aims to implement the principles of education that have been set in the legislation on the principles of child development in lpka. this aimed as a purpose of carrying out teaching and learning activities, aiming for children still have the opportunity to get education services with reference to the basics ideology and educational philosophy based on the state ideology of education based on the ideology of pancasila. implementation of training system chase system held in lpka kutoarjo is expected to fulfill formal education service principle so that when completed the training in lpka will get formal education status. however, for lpka this program is not enough for children with legal problems, additional education is needed in the form of strengthening various educational services oriented to spiritual and social spiritual reinforcement. the form of mental, social and spiritual education services are children getting spiritual education, and the opportunity to perform their worship according to their respective religions, by instilling a spirit of familial tolerance among students, with officers or coaches in lpka, so that they can communicate well. the spiritual education providers by giving the opportunity to perform their worship are directed in accordance with the religious principles of each child, so that they will have the knowledge and piety of god almighty with good, strong mentality, and can tolerate both spiritually and socially to others development based on counseling principles principle of guidance is the principle that prioritizes guidance material programmed on the development of talents of interest of lpka targeted children. coaching talents of interest is aimed at children who have an uninterrupted or unfocused talent of skills so that the skills talent does not develop. lpka kutoarjo as an institution that runs the guidance principle embodied in the guidance of children's skill training that has been arranged in 97 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 accordance with the schedule set by lpka. coaching skills to channel the talents and interests among others are training in the arts and culture of javanese karawitan, playing music, painting, and batik. other training is farming training by improving gardening system breeding chicken, and cultivate in various types of suitable planting provided by lpka by inviting trainers from ppl agriculture in the department of agriculture and farming purworejo district. this is done in addition to so that children are not saturated in lpka, is also very useful for the development of skills children later after returned to the community after undergoing coaching in lpka. the results of these trainings for the production of handicrafts and agriculture when it has obtained a decent result on sale will be sold to the public. this is meant for children will grow the child's business life when later become part of the community. this expectation for the next purpose of the guidance principle run by lpka will improve survival skills with armed skill, so when looking for work or even create a job do not feel difficult. children development based on the guaranteed right principle to stay connected with family and certain people as long as the children are criminals in lpka kutoarjo, they are guaranteed the right to remain in contact with certain families or individuals. in principle, to coach the child, should not be alienated at all with his family. they are allowed to meet with their family during the visit time set in lpka kutoarjo, family visits are expected to encourage them to live and they feel they are not abandoned by their family, besides that children are also allowed to communicate via hand phone to their family, and coaches within the lpka. the forms of development based on the principles set forth in the penal code of article 2, constitute the framework of the form of guidance which will be implemented in various forms of activities have been applied in fostering the students in lpka kutoarjo. starting from that case, the development of a criminal child committed by lpka kutoarjo oriented on the value of godhead, humanity, and society. consideration of criminal children should be oriented to the value of the divine because it is devotion to god almighty. children (including juvenile delinquency) should be regarded as a mandate should be on guard and is the responsibility of parents, family, community and government and state. consideration of criminal children should be oriented to the value of humanity must be in accordance with the protection of criminal children thus the development done by lpka kutoarjo has been done in accordance with the prevailing laws and regulations. besides that, the child is also accompanied by his/her imagination and is given skills training in the hope that lpka is no longer as a place to take revenge or attempt to deprivation of children’s rights but the child is guided and accompanied so the child realizes his mistake. 98 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang y. dika tyas wangi jils 2 (2) november 2017, 85-100 http://journal.unnes.ac.id/sju/index.php/jils conclusion from the results of the study and discussion can be concluded that the development of juvenile delinquency in the lpka in kutuarjo has conducted guidance on children in accordance with the prevailing law that is no 12 year 2012 about child criminal system namely by coaching children either spiritually, or developing talents and interests of children in lpka and fulfilling the rights of the child while in the lpka with a familial approach and improving the welfare of the child. the form of policy in conducting coaching in the future is the implementation of child development policy in the future will be done with the approach to the child through a humanist and familial policy in accordance with the conditions and situations of children in prisons at this time by give priority either the social policy by value or policy of law itself in fostering children in lpka kutuarjo, with the existence of regulation in development of juvenile delinquency expected child that who are in a period of coaching can realize its mistake and later back in society so prison not only as a place of revenge or bad stigma to child but how the child is nurtured and returned to be a law-abiding child of the law and devotion to the state. bibiliography arief, barda nawawi. kebijakan penanggulangan kejahatan: seminar kriminologi vi. semarang: undip, 1991. arief, barda nawawi. bunga rampai kebijakan hukum pidana perkembangan penyusunan konsep kuhp baru. jakarta: kencana prenada media group, 2008. arief, barda nawawi. pembangunan sistem hukum nasional, general lecture on master of laws program, postgraduate program ubh, padang, 16 may 2009. retrieved from http://bardanawawi.wordpress.com. asquith, stewart. children and young people in conflict with the law. london: jesica kingsley publeshers, 1996. braithwaite, john. restorative justice & responsive regulation. new york: oxford university press inc, 2002. nasriana. perlindungan hukum pidana anak di indonesia. jakarta: pt raja grafindo persada, 2007. supramono, gatot. hukum acara pengadilan anak.bandung: pt refika aditama, 2012. unicefand criminology studies center, faculty of social and political science, universitas indonesia, 2006-2007, 225 http://bardanawawi.wordpress.com/ 99 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 laws and regulations undang –undang no.3 tahun 1997 tentang pengadilan anak undang-undang no.11 tahun 2012 tentang sistem peradilan pidana anak undang-umdang no.12 tahun 1995 tentang sistem permasyarakatan 100 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang y. dika tyas wangi jils 2 (2) november 2017, 85-100 http://journal.unnes.ac.id/sju/index.php/jils law adagium cujus est commodum, ejus debet esse inc ommodum the person who has the advantage should also have disadvantage 37 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 volume 2 issue 01 may 2017 jils 2 (1) 2017, pp. 37-42 issn 2548-1584 e-issn 2548-1592 waiting list patterns in the implementation of hajj: the fulfillment of the rights of the congregation (study of central java province, indonesia) arif prasetyo 1 arif prasetyo faculty of law, universitas negeri semarang  arif_pra21@yahoo.com article info abstract submitted on may 2016 approved on january 2017 published on may 2017 the purpose of this study was to determine patterns in the hajj waiting list by the ministry of religious affairs regional office in central java, and the pattern of financial management of the waiting list in the pilgrimage by the ministry of religious affairs regional office in central java in the view of islamic economics. this research uses qualitative method. approach method used normative juridical. data types are primary data types and secondary data types. sources of data used are primary, secondary and tertiary data sources. data analysis used is qualitative data analysis that is deductive. the results showed (1) the implementation of hajj conducted by the ministry of religious affairs of central java regional office actually only adjust to the provisions of the ministry of religious affairs. (2) the pattern of financial management of the waiting list (ministry of foreign affairs (mora) provincial/district just register and financial payments of hajj directly to account of religious ministry center. the conclusions of this study is the provision of religious affairs center in the organization of the pilgrimage to the pattern waiting list quota of pilgrims in 2013 in indonesia 211,000 people so discretion is divided 33 provinces in accordance with the muslim population, while java was getting quota 23 719 distributed in 35 counties and cities more than 678. the financial system is wadiah amanah, so that the system/how to finance work on the waiting list will not increase due to the result /loss. keywords: implementation of hajj, pattern, waiting list 1 i would like to express my thankfulness to mr baidhowi sag mag and also to ms. waspiah sh mh, for the constructive suggestions. i also specifically express my gratitute to editorial of journal of indonesian legal studies (jils), faculty of law unnes. mailto:arif_pra21@yahoo.com 38 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang arif prasetyo jils 2 (1) may 2017, 37-42 http://journal.unnes.ac.id/sju/index.php/jils introduction indonesia is a country with a majority of the population 87% (eighty seven percent) are muslims. in running the life should always try my best to run the shari'a of islam well, in accordance with the norms that apply in islam. islamic religion teaches that this religion is based on five main foundations, or known as the pillars of islam, there are five pillars of islam, namely shahadah, prayer, zakat, fasting and hajj. so the hajj is the fifth pillar of islam, performing the pilgrimage is a duty for every muslim who has the ability. not all muslims are required to perform the pilgrimage, because the pilgrimage is a duty that demands good physical health and requires adequate financial ability. 2 with the majority of muslim, in indonesia, is automatically many people who want to perform the pilgrimage/hajj. as a result the person who will perform the pilgrimage must register first. “in central java province to be able to leave they have to wait (waiting list) twelve (12) years or more. especially now there is a bailout given by certain banks so that makes more people who register the hajj”. 3 the most fundamental problems in the organization of hajj current series is the haj waiting list (waiting list), provide guidance to the pilgrims before and after the pilgrimage. in plain certainly haj waiting list (waiting list) up to 17 (seventeen) years in the province of central java. based on law no. 13 of 2008 concerning to the implementation of hajj, mandates that the policy and implementation of hajj is a national duty and the responsibility of the government coordinated by the minister of religious affairs and in cooperation with the community, departments and other relevant agencies. to comply with the above law, the government is obliged to conduct guidance to pilgrims from preparation to leave to return to indonesia. as an effort to improve hajj services and maximize safety, smoothness, order and welfare of pilgrims as well as for the perfection of the hajj, the government through the ministry of religious central java is obliged to explain the pattern of the waiting list in the hajj for pilgrims. based on the above background, the authors formulate the following problems, first, how is patterns waiting list in implementing an hajj by the ministry of religious affairs office of central java province, and second, how is patterns financial management of the waiting list in an executor of the hajj by the ministry of religious affairs office of central java province in view of islamic economics? 2 aziz, syaikh abdul bin abdullah, 2003, tanya jawab tentang rukun islam, medan : iain sumatra utara, p. 26. 3 see, (http://www.suaramerdeka.com /v1/index.php/read/news/213/05/17/15720 listhaji-now-depart-2025) 39 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 waiting list on hajj impelentation: fulfilment of rights of the congregations hajj pilgrimage is the duty of the state through the ministry of religion and the ministry of religion. as the regulator of haj pilgrimage of religious ministry in prosecuting professionals. hajj pilgrimage in every year always reap the praise as well as criticism from the shared circles who delivered orally and in writing. the discourse that always surfaces the surface is dissatisfaction with the management of hajj and services carried out by the government. on the other hand, the government always strives to innovate and improve the aspects of managerial, human resources, operational pattern, transportation diversification, accommodation and provide wider opportunities for the community to participate in the hajj pilgrimage. the dynamics and problems of pilgrimage have always been a hot topic of discussion among the general public and politicians. the incidence of problems from year to year is largely due to the prevailing laws and regulations and the relationship between the two countries that have different socio-cultural differences as well as the differences of madzab that some of the community holds. changes in the system of study in indonesia is certainly strongly influenced by the policy set by the indonesian government. in the treasures of the hajj in indonesia has been enacted various laws and regulations that are much influenced by the socio-political conditions of his time. the arrangement of pilgrimage involves many government and nongovernment agencies assigned in accordance with their respective functions and roles, so it is impossible to handle only one agency. in the country of origin of pilgrims, especially in indonesia, the issue of haj is handled by the ministry of religious affairs by involving other departments and elements of society such as the ministry of justice and human rights, ministry of health, ministry of transportation, ministry of finance, ministry of home affairs, bank indonesia, (state-owned and private banks), airlines, public travel agencies, community organizations and islamic religious institutions as well as other community elements. while in saudi arabia, handled by representatives of the country of origin by involving the ministry of hajj saudi arabia, muassasah, majmu’ah, naqobah, immigration, customs, health, transportation and all elements of service by the government of saudi arabia. because it involves intergovernmental relationships and many parties and institutions that institutionally have authority over the pilgrimage, it is necessary to have a system to handle the hajj, and it is in this context that the pilgrim organization plays a role in administering, managing, managing and managing the pilgrimage. indonesia is a country with the largest muslim population in the world. with a muslim population of 87% of the total population, the country 40 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang arif prasetyo jils 2 (1) may 2017, 37-42 http://journal.unnes.ac.id/sju/index.php/jils of indonesia sends about 211,000 regular and annual hajj pilgrims annually to the holy land to perform hajj. hajj is one of the pillars of islam that must be done individually for the capable, both physically, mentally and material (cost). with the limitation of time and quota, government required to accommodate the desire. increasing the implementation of the pilgrimage is a national task, involving the ministry. the ministry of religious affairs as responsible together with the relevant ministries, seeks to improve the quality of hajj services based on law no. 13 of 2013, which mandates the three main tasks: development, service and protection to indonesian hajj. following the main tasks in the aforementioned law, the ministry of religious affairs has issued decree of the minister of religious affairs no. 62 of 2013 on the implementation of embarkation and hajj heber for the provinces of central java and the special province of yogyakarta. pattern waiting list in the pilgrimage by the ministry of religious affairs regional office in central java province based on the results of research and discussion of issues raised in the previous chapters, the authors draw conclusions, pattern waiting list in the pilgrimage by the ministry of religious affairs regional office in central java province. hajj pilgrimage conducted by the ministry of religious affairs of central java has been in accordance with the pattern of the ministry of religious affairs. the pattern starts from the customer submits the application of ijarah arrangement and financing of hajj to the sharia bank by first filling the application form of financing, which is equipped with supporting documents needed to get the seat portion of hajj. upon this arrangement, the bank implements the ujroh to the customer in accordance with the prevailing regulations. furthermore, bank syariah process the application by conducting analysis in accordance with applicable provisions. once your application is approved financing and customer agrees to pay ujrah specified, the signing of the arrangement agreement and financing hajj including qardh between banks and customers. after signing the contract, the bank maintains obtain a seat portion of the pilgrimage through siskohat including the realization and qardh to pay an initial deposit shortage bpih according the provisiona, force in the ministry of religion. further proof of payment is left to the customer. the customer pays ujrah simultaneously at the beginning of the financing as well as in installments over the financing period and pays qardh in installments and at the same time at the end of the financing period to the bank. the pattern of financial management of the waiting list in the pilgrimage by the ministry of religious affairs regional office in central java in the view of islamic economics. in the ministry of religious affairs the central java regional 41 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 office only enrolls and direct financial system to the ministry of religious affairs. and the views of islamic economics including fund raising products wadiah amanah (funds entrusted). based on the above conclusions, the researchers advise, (1) disclosure of information on the waiting list (waiting list) pilgrimage. (2) the government must be consistent in carrying out the organization of the pilgrimage to the pattern of the waiting list. (3) the government should be transparent about the use of finances in the conduct of the pilgrimage. conclusions hajj pilgrimage conducted by the ministry of religious affairs of central java has been in accordance with the pattern of the ministry of religious affairs. as for the pattern from the customer apply ijarah financing arrangements and the pilgrimage to the islamic bank by first filling the financing application form, which is equipped with the necessary supporting documents to get a seat portion of the pilgrimage. on the management of this, banks charge to customers ujroh accordance with applicable regulations. furthermore, bank syariah process the application by conducting analysis in accordance with applicable provisions. once your application is approved financing and customer agrees to pay ujrah specified, the signing of the arrangement agreement and financing haji including qardh between banks and customers. after signing the contract, the bank maintains obtain a seat portion of the pilgrimage through siskohat including the realization and qardh to pay an initial deposit shortage bpih according provision force in the ministry of religion. further proof of payment is left to the customer. customers pay a lump sum at the beginning ujrah financing and repaid over the contract period and pay qardh financing in installments or all at once at the end of the financing to the bank. the implementation of the hajj conducted by the ministry of religious affairs of central java regional office actually only adjust to the provisions of the ministry of religious affairs. the provision is the quota of pilgrims in 2013 in indonesia 211,000 people so that the policy is divided into 33 provinces according to muslim population, while central java get quota of 23,719 then distributed in 35 districts and cities approximately 678, then registration is a candidate pilgrims enter in each the district through the ministry of religious affairs of the regency after registering and paying them to get the portion number, the problem arises if the pilgrims resign / died replaced by the next registrant automatically unless the substitute is not ready then replaced others. the pattern of financial management of the waiting list of the ministry of religious affairs, ministry of religious affairs provincial/district just register and financial hajj payments directly to account religious ministry center. in the ministry of religious affairs the central java regional office only enrolls and direct financial system to the ministry of religious affairs. and seen from the sharia economy including the product of wadiah 42 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang arif prasetyo jils 2 (1) may 2017, 37-42 http://journal.unnes.ac.id/sju/index.php/jils fund raising (money deposit). the deposit is in the syariah lens of islam is wadiah, so the financial pattern of the waiting list will not increase due to the profit/loss. but the money deposited is affected by the dollar as a measure, so it could be the value of this deposit is reduced or increased. aknowledgement the author would express the high thankfulness to: 1. prof. dr. fathur rokhman, m.hum. as the rector of universitas negeri semarang (unnes). 2. drs. sartono sahlan, mh as a former dean of the faculty of law, universitas negeri semarang when my research conducted. 3. ubaidillah kamal, s.pd., m.h. as the primary examiner of my research project. 4. baidhowi, s.ag., m.ag. as a supervisor who has given clues, provide criticism, advice and guidance in completing this thesis to be better. 5. waspiah, sh, mh as a co-supervisor has provided guidance, direction, assistance, criticism, advice and guidance in completing this thesis for the better. 6. mr drs. h. khaeruddin. ma, as head of the ministry of religious affairs regional office of central java province, indonesia bibliography al munawir, warsono ahmad, 1984, kamus bahasa indonesia, yogyakarta: al munawar. anwar a, mahfudz, 2004, tuntunan ibadah haji dan umroh, bandung: sinar baru algesindo. aziz, syaikh abdul bin abdullah, 2003, tanya jawab tentang rukun islam, medan: iain sumatra utara. faturrahman, m, 2004, petunjuk singkat manasik haji kelompok bimbingan ibadah haji (kbhi), kendal: kbhi al-toyibah. rasyid, sulaeman, 1986, fiqih islam, bandung: sinar baru. laws and regulations law no. 17 of 1999 on the implementation of hajj. law no. 13 of 2008 on the implementation of hajj. national sharia board fatwa (dsn) no. 19/dsn-mui/mui/iv/2001 on al-qardh. national sharia board fatwa (dsn) no. 79/dsn-mui/iii/2011 on qardh using customer funds. others http://www.suaramerdeka.com /v1/index.php/read/news/213/05/17/15720 list-haji-now-depart2025 (downloaded 19.08.2013 16:15) 155 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 data of book author : rodiyah published year : 2016 title : aspek demokrasi dalam pembentukan peraturan daerah language : indonesia, bahasa city published : semarang, central java, indonesia publisher : bpfh unnes isbn : 979-99139-o-x volume 2 issue 02 november 2017 jils 2 (1) 2017, pp. 155-158 issn 2548-1584 e-issn 2548-1592 book review democracy on indonesian legal reform: how can people participate on laws and regulations establishment process ridwan arifin ridwan arifin faculty of law, universitas negeri semarang k building, 1st floor, sekaran campus, gunungpati, semarang, indonesia  ridwan.arifin@mail.unnes.ac.id introduction since the collapse of suharto’s new order regime in 1998, world's most populous muslim nation has undergone the process of reformasi—evolving from a highly centralized, authoritarian state to the third-largest democracy and one of the most decentralized political systems in the world. while its neighbors in southeast asia have become increasingly autocratic, indonesia continues to quietly consolidate its democratic institutions and run successful elections for numerous levels of government (walden, 2017, para. 3). in 1999, the habibie government enacted law 22 and law 25, which entailed a radical devolution of governmental and fiscal responsibility from the central mailto:ridwan.arifin@mail.unnes.ac.id 156 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang ridwan arifin jils 2 (2) november 2017, 155-158 http://journal.unnes.ac.id/sju/index.php/jils government to locally elected representatives at the district (kabupaten) and municipality (kota) level. provincial governments also hold significant power. accordingly, the indonesian central government is left only with a few key areas of policy (justice, foreign policy, defense and religious affairs), making local elections very important (walden, 2017, para. 4), and the issue of democracy is the most frequent issue in all aspects of the nation and state in indonesia, including on the laws and regulations establishment. democracy is increasingly a component of indonesia’s engagement with its external environment. indonesia launched the bali democracy forum in november 2008 with the aim of “promoting regional and international cooperation in the field of democracy.” the bali forum is taking an inclusive approach that brings together democracies as well as those “aspiring to be more democratic.” the forum is to act as a platform for countries to “exchange ideas and knowledge and share experience and best practice” (institute for peace and democracy, 2008). looking for democracy and people participation on establishement laws and regulations the guarantee of the real implementation of democracy is the emergence of the law on which to base the development of democracy. it is often stated that between law, democracy and human rights has a pyramidal relationship. the law becomes the basis of the implementation of democracy and democracy becomes the main basis for the realization and respect for human rights. that is, it is impossible to establish a democratic government without a law, and it is impossible to realize human rights awards (one of which is to obtain education) without a democratic state government. this issue—democracy— become one of the parts raised 157 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 and discussed further in the book “aspek demokrasi dalam pembentukan peraturan perundang-undangan”, written by rodiyah. there are two main categories (models) of democracy when associated with the ideal conception of democracy itself. two models of democracy are substantive democracy and procedural democracy. the character of the first model (substantive democracy), among others, is marked by the existence of similarities between classes, ethnic, gender, and other forms of identity or affiliation in society. this model is essentially, many referring to the model of "ideal democracy" or the concept of populist democracy. while the character of procedural democracy model, among others, is shown by the existence of civil liberties, and the implementation of general elections on a regular basis (rodiyah, 2016, 1-2). rodiyah oh her book emphasized that until today the most appropriate model of democracy and the most appropriate implementation of democracy has not been found, even throughout history indonesia is still in trial and error of concepts of democracy while seeking the most suitable. the fluctuations of democracy have ups and downs as the implementation of its basic aspects, both formal and material aspects (rodiyah, 2016, 4). furthermore, rodiyah (2006) highlighted that indonesia is a state of law, meaning that the state of indonesia has a strong juridical foundation in its role of carrying out development. the state must be built from two concepts, namely law and democracy. indonesia embraces pancasila democracy, a democracy based on godhead, humanity, unity, people and justice. the concept of democracy shows two aspects: (1) the material aspect of pancasila democracy must be imbued and integrated with other precepts, therefore, the notion of pancasila democracy is not only political democracy but also economic and social democracy culture (education) to create justice, and (2) formal aspects, namely pancasila democracy is a form / decisionmaking (political democracy) contained in the fourth precept, namely “democracy led by wisdom in deliberation/representation, demokrasi yang dimpimpin oleh hikmat kebijkasanaan dalam permusyaratan perwakilan.” rodiyah—with aspek demokrasi dalam pembentukan peraturan perundang-undangan—analyzed some theories from legal scholars to strengthen and sharpen her arguments on her book, and concerning to law enforcement and democracy as well as on laws and regulations establishment, according to robert b. seidman and william j. chambliss (1971, 56) as cited by rodiyah (2012, 148), the process of legal work is determined by four major components, namely law-making institutions, law enforcement bureaucracies, role-holders, and the influence of personal and social forces. the first three components (law enforcement, law enforcement bureaucracy, and roleholders) play a role in the legal corridor, while personal and social forces are "non-legal" components. finally, with five chapters on her book, rodiyah tried to explain that democracy in the meaning of people participation on laws and regulations establishment was accommodated on the act but lack in the implementation. the problems can be legal substance, legal structure or even legal culture 158 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang ridwan arifin jils 2 (2) november 2017, 155-158 http://journal.unnes.ac.id/sju/index.php/jils itself. after reading this book, we can assume that, democracy in indonesia especially in the establishment of laws and regulations processing is very complicated thing. references chambliss, william j. & robert b. seidman. law, order and power. reading, massachusetts: adison-wesley publishing company, 1971. institute for peace and democracy, “the bali democracy forum inauguration”, november 9-11, 2008. rodiyah. aspek demokrasi dalam pembentukan peraturan perundang-undangan. semarang: bpfh unnes, 2016 rodiyah. “aspek demokrasi dalam pembentukan peraturan daerah dalam perspektif socio legal,” masalah-masalah hukum journal, undip jilid 41 no. 1, january, 2012, 144-152 walden, maw. democracy in indonesia: a cause for celebration, retrieved from https://www.lowyinstitute.org/the-interpreter/democracyindonesia-cause-celebration, 20 february 2017 https://www.lowyinstitute.org/the-interpreter/democracy-indonesia-cause-celebration https://www.lowyinstitute.org/the-interpreter/democracy-indonesia-cause-celebration 123 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 volume 2 issue 02 november 2017 jils 2 (2) 2017, pp. 123-130 issn 2548-1584 e-issn 2548-1592 non-traditional trademarks in indonesia: protection under the laws and regulations (an intellectual property law) andry setiawan, dewi sulistianingsih, ivan bhakti yudistira andry setiawan, dewi sulistianingsih, ivan bhakti yudistira private and commercial law department, faculty of law, universitas negeri semarang  andry_style@yahoo.co.id, dewisulistianingsih21@gmail.com article info abstract submitted on june 2017 approved on september 2017 published on november 2017 non-traditional trademarks also known as nonconventional trademarks develop due to business demands. the development of new trademarks like the sound, scent, three dimensions, and hologram are defined as non-traditional trademarks and non-conventional trademarks or modern trademarks. the international and national regulations of the trademarks are done through several instruments. in indonesia, they are governed in act no 20 of 2016 and the regulations of the ministry of law and human rights no 67 of 2016. despite their regulations which are accommodated in the act no 20 of 2016, the implementations of the regulation in indonesia are as well-developed as that of other countries. the problems in the implementation of the non-traditional trademark protection are the responsibilities of the general directorate of intellectual property especially in preparing the facilities and human resources. keywords: non traditional trademarks, indonesia mailto:andry_style@yahoo.co.id mailto:dewisulistianingsih21@gmail.com 124 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang andry setiawan, et.al. jils 2 (2) november 2017, 123-130 http://journal.unnes.ac.id/sju/index.php/jils introduction the rapid advancement of technology in the globalization era has inevitably caused a very significant development to intellectual property. one product or service created in one country will soon be able to be presented in another country or other countries. the existence of the product or service whose production process has already utilized an intellectual property will automatically acknowledge the intellectual property when it is launched to the market. the need to protect the intellectual property increases as the need to protect the respective goods or service as commodities in trade increases. the intellectual property protection will prevent from the abuse of rights or illegal use of the product or service without consent from the intellectual property right owner(s). the function of the law is to give protection for the owner of the intellectual property right from abuse of right like counterfeiting, fraud, unhealthy competition, etc. in order to give the necessary protection, law needs to keep updated at all times following the advancement of the technology and era. the more advanced the technology is, the more advanced the law needed. one of the examples of law development on intellectual property right in indonesia is trademark rights. it is realized by the issuance of act no 20 of 2016 on trademarks and geographic indications. the background of passing the law is that the minimum and inability of the previous law to cope with the development of the society necessity for trademark protection and geographic indication and the protection of local and national economic potentials. therefore, the law needs to be changed. for this purpose, the house of representatives of indonesia has put the latest trademark acts into effect in 2016. the implementation of the act no 20 of 2016 results in the cancellation of other previous acts on trademarks. it covers the regulations of famous trademarks and a wider scope of trademarks so that it can accommodate non-traditional trademarks. non-traditional trademarks also known as non-conventional trademarks develop due to business demands for protecting their trademarks either in the national or international markets. since the trademark regulations covered in the act no 15 of 2001 still contain flaws, they need to be revised. several instances of the flaws are that the trademarks are related to conventional trademarks only, the trademark registration process took a relatively long time, the minister did not have power to revoke registered trademarks, there was no regulation on the government authority in registering collective trademarks, there was no regulation on the proposal of international trademark registration, there was no regulation on the imposition of criminal sanctions, and there were on few things covered in the geographic indications. a trademark is a communication medium recognizable by one of the five human senses. a trademark is divided into two types namely, traditional 125 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 and non-traditional trademarks. the traditional trademarks are those that include any signs, labels, etiquettes, names, letters, numbers or the combination of thereof. the development of technology has triggered the emergence of a new category in the modern trademarks or known as the nontraditional trademarks. in the trademark development, we know non-traditional trademarks as the extension of the traditional ones. toni p. ashton and david n. katz said: “non-traditional trademarks are trademarks consisting of such things as: sound, smell, taste, touch, hologram and kinetic mark”. according to them, the meaning of non-traditional trademarks is those consisting of such things as sound, aroma, taste, touch, hologram and kinetic marks. 1 it is considered to be a non-traditional, because a trademark consists of elements which are developed from other known trademark element in general. in some countries, advertising slogans are also considered trademarks and may be registered in the trademark registration office. a number of countries also allow unusual forms of trademarks to be registered, such as the three dimensions sign (product form, packaging, or position of a sign), audible (sound) or aroma. however, aroma is very rarely regulated as a trademark including in indonesia, because it utilizes a high technology in its application. non-traditional trademarks: a general overview indonesian legislation has recently accommodated non-traditional trademarks as a trademark. previously, in act no. 15 of 2001 non-traditional trademarks were not accommodated as a trademark. it can be seen in the article 1 of act no. 15 of 2001 which says, “a trademark is a sign in the form of pictures, names, words, letters, numbers, color arrangement, or combination of those elements which have differentiating power and is used in activity of trading of goods or services.” the article did not mention the form of three dimensions, hologram, sound, and aroma as a protected trademark. later, products having the characteristics like three dimensions, sound, hologram or aroma need to be protected, because they distinguish them from other products. regulations which have not accommodated non-traditional trademarks in indonesian law certainly become a particular concern for the trademark creators especially if the trademark is considered to be a wellknown one since it is possible that others have possibility to copy freely or plagiarize the trademark without getting any sanction. the most copied 1 toni p. ashton, david n. katz, “non-traditional trademark”, journal of federation international des conseils, munich, 2010, 3. 126 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang andry setiawan, et.al. jils 2 (2) november 2017, 123-130 http://journal.unnes.ac.id/sju/index.php/jils trademarks are those that are profitable or well-known, since they have gained a good reputation from the public and are often used or consumed by the public at large. in addition, the investors who want to invest by setting up a factory that produces the product also becomes worried about the sustainability of the product, because there is no future legal protection guarantee. the elements of pictures, names, words, letters, numbers, color arrangements, or the combinations of these elements will not be sufficient to act as distinguishing characteristics of the trademark. there are new elements that can be expressed as distinguishing characteristics of the trademark like the aroma, sound, hologram, three dimensions. for example: the fragrance of ck and bulgari are so distinctive that everyone who has been familiar with the scent of the perfume will directly be able to identify the trademark of the scent. another example is sound. everyone who has heard of a jingle of a product like “indomie seleraku” will spontaneously be able to immediately know that the jingle belongs to a product of indomie noodles that is introduced to the consumers through sound. the above examples are elements of distinguishing characteristics which can be considered to be a trademark itself. therefore, the use of these elements has to be developed in order to give protection to the marketed products. the development of new trademarks like sound, aroma, three dimensions, and hologram are defined as the non-traditional trademarks or called non-conventional trademarks or modern trademarks. thus, the trademark classification consists of traditional and non-traditional and in its definition, there are elements which can be considered as trademarks. aside from the traditional and non-traditional trademarks, there are several characteristics of the trademarks like visible signs which mean that the trademark is visible, and non-visible signs which mean that the trademark is not visible but sensible, like sound and aroma. the regulations of non-traditional trademarks the regulations of non-traditional trademarks internationally and nationally are governed in several instruments. in indonesia, they are governed in the trademark acts no 20 of 2016 and the regulation of the ministry of law and human rights no 67 of 2016 on trademark registration. the article 15 paragraph 1 of trade-related aspects of intellectual property rights agreement mentions that: “any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colors as well as any combination of 127 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 such signs, shall be eligible for registration as trademarks. where signs are not inherently capable of distinguishing the relevant goods or services, members may make registrability depend on distinctiveness acquired through use. members may require, as a condition of registration, that signs be visually perceptible”. what needed to be done with the non-traditional trademarks is that the trademarks owner makes efforts to introduce them to the consumers widely. for example, bad eyesight or blind consumers do not necessarily mean that they cannot know and distinguish one product from the others. for this condition, the owner of the trademarks has to try to introduce the trademark through sound like a jingle, an aroma through the sense of smell, gesture through touch and so forth. consequently, a consumer who has physical limitations will be able to distinguish one product from the others. that is the causing factor that these kinds of trademarks grow, trademarks owners attempt to their trademarks to the market widely regardless of one's physical condition which may limit their ability to distinguish one product from the others. the need for new trademarks has expanded to various other businesses so that the development of new trademark types seems to be very urgent for the sustainability of the trademarks in the future. the emergence of new non-traditional trademarks is caused by the development of business demand either nationally or worldwide. this development is inevitable in order that the business competition will benefit each business actors. the development consists of goods and service business in the process of which a legal protection for the goods and the service. the protection available is for the pictures, logos, names, words, letters, numbers, color composition, or the combination between two elements or among the elements. there are more items to be protected like sound, hologram, three dimensions, and aroma. the rapid development of business world is considered to be the cause for protection of other facets of trademarks in the years to come. table 1. the regulation of non-traditional trademarks in the act no 20 of 2016 no. regulation remarks 1. paragraph 1 item 1 a trademark is any sign presented graphically in the form of a picture, a logo, a name, a word or words, a letter or letters, a color composition in two or three dimensions, sounds, a hologram, or combination between two elements or more to distinguish a certain goods or service created or provided by an individual or an entity in a trade activity/ service provision. 2. paragraph 4 item 6 if the trademark is in the form of three-dimensional object, the label attached should be in line with the characteristic of the trademark. 128 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang andry setiawan, et.al. jils 2 (2) november 2017, 123-130 http://journal.unnes.ac.id/sju/index.php/jils paragraph 4 item 7 if the trademark is in the form of sound, the label attached should be in the form of notation or a sound recording. indonesia only provides protections for non-traditional trademark elements such as sounds, a three-dimensional object, and a hologram. the reason why it happens is because they are more difficult to be protected. in addition, indonesia is still facing a difficulty imposing the implementation of the protection for those elements like in some developed countries, since indonesia is not ready, both in the regulations and in the government capability in this case the general directorate of intellectual property. there is no difference between the regulation of traditional trademarks and that of non-traditional. non-traditional trademarks are just the expansion or the development of the traditional trademarks. the problem is that the nontraditional trademarks are substantially more difficult because they can be in the forms of non-visible signs. a trademark can be registered, unless: 1. it does not conflict with the national ideology, laws and regulations, morality, religions, social norms, or public order; 2. it is not suitable with, related to, or does not state the goods and or services it attempts to register; 3. it does not contain misleading elements about the origin, quality, type, size, kind, purpose of the goods or the service that it attempts to register, or it does not use name of a variety of protected plant for the similar goods or services; 4. it does not contain information which is irrelevant with its quality, use, or benefit from the product and or service provided; 5. it does not have a distinctive characteristic; and or 6. its name belongs to public facility or symbol. a trademark can be accepted by the examiner if it does not have any similarity either in part or in whole with other registered trademark, such as; 1. the trademark of other party has been registered prior to the similar product and or service; 2. a publicly known trademark of other party with the similar product and or service; 3. a publicly known trademark of other party having certain conditions although not similar with the product and or service; or 4. a registered geographic indication. a trademark can be rejected if: 1. it is or is similar with a publicly known name of a person or its acronym, a photograph, or a name of an entity of other party, except with a written consent from the right owner; 2. it is an imitation or resembles a name or an acronym, a flag, a symbol or an emblem of a country, or a national or an international institution, except with a written consent from the authority; 129 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 02, 2017 3. it is an imitation or resembles a mark or an official stamp used in a country or by a government institution, except with a written consent from the authority. based on the above regulations, it is clear that a trademark can be accepted if it does not conflict with what has been governed in the trademark act and it will be accepted it does not have any similarity either in whole or in part with a previously registered trademark. the regulations above sum up the protection of non-traditional trademarks in indonesia. conclusion the regulations of non-traditional trademarks in indonesia can be seen in the act no 20 of 2016 on trademarks and geographic indications. there has been a strong urgency for the non-traditional trademark protection. however, not until the year of 2016 can these regulations be realized. it was because there are some developing products which need to be protected by these regulations. until recently, there has not been a non-traditional trademark registered as a trademark. this condition is so since the act no 20 of 2016 was just recently implemented. in addition, there have not been operational regulations which specifically govern the registration of non-traditional trademarks. bibliography toni p. ashton, david n. katz, “non-traditional trademark”, journal of federation international des conseils, munich, 2010. azed, abdul bari. kompilasi konvensi internasional hki yang diratifikasi indonesia ditjen hki-fhui (the compilation of international convention on intellectual property rights ratified by indonesia. directorate general of intellectual property rights of law faculty of universitas indonesia). jakarta: prenadamedia group, 2006. jened, rahmi. hukum merek trademark law dalam era global & integrasi ekonomi (the trademark law in the global and integrated economy eras). jakarta: prenadamedia group, 2015. samsudin, dadan. hak kekayaan intelektual dan manfaatnya bagi litbang. (intellectual property rights and their benefits for research and development). jakarta: direktorat jenderal kekayaan intelektual kementerian hukum dan hak asasi manusia, 2016. 130 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang andry setiawan, et.al. jils 2 (2) november 2017, 123-130 http://journal.unnes.ac.id/sju/index.php/jils law adagium lex nemini operatur iniquum, neminini facit injuriam the law works an injustice to no one and does wrong to no one 147 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 data of book author : ali masyhar published year : 2009 title : gaya indonesia menghadang terorisme: sebuah kritik atas kebijakan hukum pdana terhadap tindak pidana terorisme di indonesia language : indonesia, bahasa city published : bandung, west java, indonesia publisher : mandar maju isbn : 978-979-538-338-3 page : xiii, 355 pages; 26 cm volume 3 issue 01 may 2018 jils 3 (1) 2018, pp. 147-150 issn (print) 2548-1584 issn (online) 2548-1592 book review tackling terrorism, an indonesian style on penal and non-penal policy perspective: a book review gaya indonesia menghadang terrorisme, ali masyhar harmaji harmaji semarang police department, polrestabes semarang postgraduate student, faculty of law, universitas negeri semarang k building, 1st floor, sekaran campus, gunungpati, semarang, indonesia  harmaji.2002@gmail.com there are many interesting theses contained in two books written by ali masyhar. the first book entitled gaya indonesia menghadang terorisme: sebuah kritik atas kebijakan hukum pidana terhadap tindak pidana terorisme di indonesia or indonesia style hampering terrorism: a critique of criminal law policy against criminal acts of terrorism in indonesia has at least three theses. the first thesis is quoted from muladi and arief stating that the imposition of a criminal to a 148 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang harmaji jils 3 (1) may 2018, 147-150 http://journal.unnes.ac.id/sju/index.php/jils person is not solely because the person has committed a crime. the penalty is imposed with the aim that no one should carry out a crime. this thesis is interesting because in reality in the field, the criminal is imposed against the person who has committed a criminal. criminal is imposed after sufficient evidence and based on a court decision that a person has committed a crime and must be sentenced to criminal (masyhar, 2009: 154). this means that if the purpose of criminal law is as stated in the first thesis, then the application of criminal law in the field has not been in accordance with the purpose of criminal law. almost all people who have been sentenced to criminal because the person has committed a crime. the question is whether the person does not understand criminal or law enforcement objectives that do not understand the criminal so that the person who has committed the crime is always criminalized? if law enforcers interpret the criminal purpose according to the first thesis then the person committing the crime does not have to be penalized. criminal as a repressive act is used as a last resort. law enforcers do not have to take a criminal act first. law enforcers may make other efforts such as non-penalty efforts. if the non-penalty effort is more prevalent then the criminal goal will be achieved. this means that a person who commits a crime does not have to be imposed a criminal but can be done with other efforts that are more humane. the second thesis of the book written in ali masyhar in 2009 is criminal which is contained in the criminal code or criminal code is too light. in addition, intellectual actors cannot be severely punished. implementation of criminal law also takes a long time because it must be juxtaposed with criminal procedure law or formal law (masyhar, 2009: 155156). the thesis can at least conclude that criminal law and its application have substantial problems. the problem contained in the criminal law is the lack of criminal law as mentioned in the second thesis. the shortcomings of the criminal law should be corrected so that criminal law has a fair value. in addition, the application of criminal law can achieve justice. therefore, criminal law policy is time to be evaluated and improved. the criminal law policies that are widely contained in the criminal code are time to be replaced. criminal code that is used now there are many shortcomings and cause not reached the value of justice. therefore, the existing criminal code should be replaced immediately so that the problems and shortcomings contained in the criminal code can be eliminated or minimized, especially in substance and application. in addition, the criminal procedure law contained in the criminal procedure code or criminal procedure code also needs to be revised or replaced. it is so that between the kitab undang-undang hukum pidana or criminal code and kitab undangundang hukum acara pidana or criminal procedure code can synergize and answer the challenges of the future era that increasingly complex in particular the problem of criminal acts. the third thesis contained in the book indonesia style hampering terrorism: a critique of criminal law policy against criminal acts of 149 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 terrorism in indonesia written by ali masyhar is related to democracy. the thesis states that democracy is part of countering criminal acts especially terrorism crime. this is because in democracy there are persuasive efforts, negotiate, and prioritize tolerance. democracy also prohibits violence and coercion. democracy also promotes the freedom and security of the people, and protects human rights. this condition can only be achieved by conducting a democratic value social policy. when it has happened then the prevention of terrorism can be done (masyhar, 2009: 177-178). if democracy is a way to prevent the occurrence of terrorism because of the advantages of democracy as mentioned earlier, next question is why big democracies are often terrorist acts? does the country not implement real democracy? or in fact a democracy that cannot prevent the occurrence of terrorism. the united states and indonesia are the largest democracies in the world. the united states is the world's largest democracy. indonesia is the third largest dominant country in the world after the united states and india. but in reality the two countries are often criminal acts of terrorism. the united states is often attacked with acts of terrorism such as events at the wtc building in 2001 and other bombing events that occurred in cities like boston and others. indonesia is almost the same. after the bomb attacks in 2002, terrorism in indonesia is like a tit for tat. terrorism incidents in indonesia continue to emerge including the bali bomb ii—the bombing at the ritz carlton hotel and j.w. marriot—and lately is bombing on the street m.h. thamrin jakarta. not to mention other terrorist events. the number of criminal acts of terrorism occurring in the two major democracies indicates that democracy as a means of preventing criminal acts of terrorism receives great pros and cons and debate. for some democracy countries to be an effort to prevent the crime of terrorism, and it is also possible that in the united states and in indonesia criminal acts of terrorism are not caused by democracy or the two countries are democracy but there is no balance between democracy and other prevention efforts. but in reality criminal acts of terrorism can thrive in a democratic country. therefore, the advancement of democracy should be synergized with fair law enforcement, protection of security, prosperity and prosperity for the people as well as tolerance. in addition to the three theses that have been analyzed from the indonesian style of confronting terrorism: a critique of criminal law policy against terrorism crime in indonesia. there is one thesis contained in the book of pergulatan kebijakan hukum pidana dalam ranah tatanan sosial or criminal law policy struggle in the social order area written by ali masyhar in 2008. one of the theses in this book is that criminal countermeasures must be carried out first with non-penalty efforts. if non penalty efforts cannot overcome the crime then just use penal efforts. this is because penal efforts cannot reach the causes of the crime. in addition, penal efforts that use the criminal code still have many shortcomings or weaknesses (masyhar, 2008: 69). 150 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang harmaji jils 3 (1) may 2018, 147-150 http://journal.unnes.ac.id/sju/index.php/jils the thesis is interesting to review because it states that it should be in the prevention of criminal acts using non penalty efforts in order to achieve the causes of criminal acts. if that is the case then law enforcers should in handling criminal offenses first prioritize non-penal efforts, and if a non-penal policy has not been made in the form of a strong legal product then the role of the legal agent is very important in enforcing the non-penalty effort. law enforcers must first understand non-penalty efforts and then enforce a fair non-penal effort in tackling criminal offenses. if law enforcers can prioritize non penal efforts in tackling criminal offenses then the causes of criminal offenses can be resolved. in addition, substantive justice will be easier to achieve. references masyhar, ali. 2008. pergulatan kebijakan hukum pidana dalam ranah tatanan sosial. semarang: unnes press. __________. 2009. gaya indonesia menghadang terorisme: sebuah kritik atas kebijakan hukum pidana terhadap tindak pidana terorisme di indonesia. bandung: mandar maju. the indonesian criminal code (kuhp) the indonesian criminal law procedural (kuhap) the indonesian anti-terrorism act 1 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 volume 3 issue 01 may 2018 jils 3 (1) 2018, pp. 1-4 issn (print) 2548-1584 issn (online) 2548-1592 editorial commentary introducing jils 3(1), may 2018 edition: the implementation of laws and regulations in indonesia dani muhtada universitas negeri semarang (unnes) when freedom does not have a purpose, when it does not wish to know anything about the rule of law engraved in the hearts of men and women, when it does not listen to the voice of conscience, it turns against humanity and society. pope john paul ii verily, allah orders justice and good conduct and giving to relatives and he forbids immorality and bad conduct and oppression. he admonishes you that perhaps you will be reminded. surah an-nahl 16: 90 the implementation of laws and regulations is an important part of law enforcement. it involves the willingness of legal officers and the general society to enforce the law in order to maintain social order and to establish justice. law is not just for law. law is for the betterment of the society. without the implementation of law and regulations, law will be meaningless. 2 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang dani muhtada jils 3 (1) may 2018, 1-4 http://journal.unnes.ac.id/sju/index.php/jils people need justice as well as social prosperity through the implementation of laws. the implementation of laws also makes people aware that legal certainty truly exists in the society. government makes laws and regulations for the society, and they need to enforce the law to ensure that rule of laws exist in the society. this journal’s edition is about the implementation of laws and regulations. we provide several articles that discuss how laws and regulation have been implemented in indonesia. suwandoko and rodiyah analyze the implementation of the pillars of the bureaucratic reform in increasing taxpayers’ compliance at semarang tax office. they argue that the implementation of the pillars of the bureaucratic reform at the semarang tax office is important for several considerations, including philosophical, sociological and juridical reasons. muhammad ikbal studies the implementation of discretion in the context of penal policy at the yogyakarta police department. the study shows that the discretion in the yogyakarta police department is guided by the provisions of written rules and unwritten rules that live in the community. it is also guided by the lines of criminal law policy. the investigators applied the discretion through restorative justice approaches. another article by muhammad insan tarigan analyzes the implementation of countermeasures effort of illegal fishing in indonesia. he discusses the indonesian government policy in destroying and sinking illegal vessels that operate within indonesia’s water territory. he argues that the policy is not contradictory to international laws, including unclos 1982, ipoa-iuu fishing or ccrf. another article by selvia ichwani hidayati discusses the implementation of the minister of health’s regulation on the performance of the community health service in bawen, central java. the author argues that the implementation of the regulation has been in line with the indicators required by the law. however, some internal and external problems still exist. i have to express my gratitude to all authors who have submitted manuscripts for this edition. my special thanks go to all members of the editorial management of the journal of indonesian legal studies, postgraduate program, faculty of law universitas negeri semarang (unnes): mr.ridwan arifin sh llm (managing editor of jils), mr. widiyanto spd (online editor jils), mr.fendi setyo harmoko amd, and mr.wahyudin spd (editorial assistant), ms.alifah karamina se, and 3 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 ms.rizky yanda shagira spd (boards of administration of jils). i would also like to express my gratitude to all of the members of the editorial board of this edition: prof. sudijono sastroatmodjo msi (universitas negeri semarang), assoc. prof. dr rodiyah spd sh msi (universitas negeri semarang), abdul mohaimin bin nordin ayus (universiti islam sultan sharif ali, brunei darussalam), dr. indah sri utari (universitas negeri semarang), prof. fokke j frenhout (masstrict universiteit, the netherlands), prof. topo santoso (universitas indonesia), dr. arie afriansyah mil, phd (universitas indonesia), fahrizal afandi (leiden universiteit, the netherlands), prof jhon h aycock (peking university, china), amir husn mohd nor (universiti sains islam malaysia), nehginpao kipgen (jindal global university, india), mas nooraini binti h mohiddin (universiti sultan sharif ali, brunei darussalam), dr ali masyhar sh mh (universitas negeri semarang), dr duhita driyah suprapti (universitas negeri semarang), and dr dewi sulistianingsih (universitas negeri semarang). finally, i wish this edition could contribute significantly to the development of legal and trigger more discussions on the implementation of laws and regulations in indonesia. dani muhtada, m.p.a., ph.d. faculty of law, universitas negeri semarang editor in chief, journal of indonesian legal studies (jils) jils@mail.unnes.ac.id, dmuhtada@mail.unnes.ac.id 4 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang dani muhtada jils 3 (1) may 2018, 1-4 http://journal.unnes.ac.id/sju/index.php/jils law adagium at his best, man is the noblest of all animals, separated from law and justice he is the worst aristotle ancient greek philosopher attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf2391bd59a637 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf238ffb102007 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare 5 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 volume 3 issue 01 may 2018 jils 3 (1) 2018, pp. 5-28 issn (print) 2548-1584 issn (online) 2548-1592 the implementation of bureaucratic reform pillars in increasing taxpayer compliance at semarang tax service office suwandoko, rodiyah suwandoko postgraduate program, faculty of law, universitas negeri semarang  suwandoko91@gmail.com rodiyah department of constitutional and administrative law, faculty of law universitas negeri semarang, indonesia table of contents introduction ………………………………………………………… 6 the urgency implementation of bureaucratic reform pillars in the semarang tax service office 9 the implementation of bureaucratic reform pillars in improvement of the taxpayer compliance in the semarang tax service office …... 10 conclusion ……………………………………………………………. 23 bibliography …………………………………………………………. 24 * this paper was my thesis research, and i would like to express my great thankfulness to professor sudijono sastroatmodjo msi and mr dani muhtada mpa phd for very interesting discussion for their comments to this paper. i would also to say thanks to mr ayon diniyanto and for postgraduate students of law for intensive discussion and debates, for the paper betterment. 6 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang suwandoko, rodiyah jils 3 (1) may 2018, 5-28 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on january 2018 approved on february 2018 published on may 2018 semarang city tax office which has the main task to collect the tax revenue in the context of national development, then the semarang tax office associate implemented bureaucratic reform pillars in improving tax compliance. this paper examined the compliance of taxpayer in the theory of bureaucratic reform. the paper emphasized that the urgency of the implementation of bureaucratic reform pillars at the semarang tax office, which consists of philosophical, sociological and juridical aspects. the implementation of bureaucratic reform pillars in improving taxpayer compliance at semarang tax office was examined by the implementation model of bureaucratic which influences the bureaucratic reform pillars, which indicates that taxpayer compliance level is less than optimal. the obstacles were employees who are less than optimal in the field of taxation and taxpayers who are less obedient in payment and tax reporting. the efforts did through the socialization of the bureaucratic reform pillars implementation to employees and taxpayers to improve taxpayer compliance and tax revenue. keywords: compliance; taxpayer; bureaucratic reform. introduction a state is the highest organization in the life of society in a region. as an organization, the state has a purpose contained in the state constitution that is in accordance with the fourth paragraph of the 1945 constitution preamble of indonesian republic state. it needs a gradual, planned, and sustainable development. the people’s desire to enjoy the efficient, responsive and accountable public services in the political, economic, legal and social sectors is far from expectations. state apparatuses as state organizers, between legislative, judicial, and executive are also unable to create meaningful changes in government performance. the check and balances in general the concept and principle of trias politica with state power derived from the people how to cite (chicago manual style) suwandoko, rodiyah. ―the implementation of bureaucratic reform pillar in increasing taxpayer compliance at semarang tax service office‖, journal of indonesian legal studies (jils), 2018 3(1): 5-28. 7 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 and should be used for the welfare and prosperity of the people (rodiyah 2016). the culmination of the demand for change is the economic crisis experienced by the indonesian nation in 1997 and in 1998 has developed into a multidimensional crisis. these conditions resulted in strong demands from all walks of life to the government for immediate an organizational reform of nation and state life. since then, there have been important changes become the cornerstone of the reform era in politics, law, economics, and bureaucratic, known as reform (chapter i introduction of presidential regulation number 81 of 2010 on the grand design of bureaucratic reform 2010-2025). bureaucracy itself, according to cope (1997), historically was proposed and implemented as a reform of the undemocratic, elitist, and often corrupt political and governmental systems that preceded it—systems complete with patronage, special interest influences, inefficiency, and high taxes. bureaucracy now is associated often with similarly pejorative concepts such as inefficiency, rule-bound action, low productivity, lack of responsiveness, and high taxes. bureaucratic reform often is cited as the way to ameliorate if not eliminate these ills, to increase government’s responsiveness to the public’s needs, and to improve the political accountability of government agencies and bureaucrats. but, in indonesia, bureaucratic reform is a public hope for the government to be able to combat corruption and establish a clean government and efficient, responsive and accountable public services. therefore, law no. 28 of 1999 on the implementation of a clean and free state of corruption, collusion and nepotism was formed. the changes are made to carry out the roles and functions of bureaucratic in a timely manner, quickly and consistently, in order to produce the benefits as mandated by the constitution. it has become a demand in realizing good governance. muhtada (2017) stated that the reform will result in more efficient decision-making and services. moreover, hoadley (2014) emphasized that the main characteristics of administration or bureaucracy are continuity, longevity, and conservatism. translated into policy, continuity refers to the senatorial function contributing to social/ governmental stability at the price of flexibility, longevity to the predominance of seniority over performance in determining civil servants‟ position and rewards, and conservatism to the application of rules or accepted ways of doing things derived external to the administration in question. recently, almost all government agencies, especially ministries and agencies, have been preoccupied with efforts to reform the bureaucratic. this is done because of the bad state of indonesia bureaucratic before and in the 1998 reform period, it is necessary to reform bureaucratic in every bureaucratic institution in indonesia, and it is very important for indonesia because the reform—bureaucratic reform—become one of the indicator for world bank to assess the development of certain country (cruz and keefer 2015). therefore, law writing will bring the theme of bureaucratic reform in 8 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang suwandoko, rodiyah jils 3 (1) may 2018, 5-28 http://journal.unnes.ac.id/sju/index.php/jils indonesia so that the general public knows what is bureaucratic reform, and also the public can find out how effective bureaucratic reform that has been running in bureaucratic institutions of indonesia nowadays. one of the bureaucratic institutions that conduct bureaucratic reform is the ministry of finance. this law writing takes the example of the ministry of finance because it one of the bureaucratic reform pilots which enacted since 2006 (inspectorate general of tax the ministry of finance 2012: 5). through the decree of the minister of finance no. 185/kmk.01/2012 on amendment to the minister of finance decree no. 345/kmk.01/2011 on the road map of bureaucratic reform of the ministry of finance of 20102014, has launched a bureaucratic reform that covers various priority programs. the program includes organizational structuring, business process improvement, and refinement of human resource management (hr). along with the steps of the ministry of finance and in order to realize its vision, mission and objectives, the directorate general of taxes which is one of the institutions under the ministry of finance has also conducted bureaucratic reforms. semarang tax service office was formed as one of the realization of bureaucratic reform program in directorate general of taxation, based on minister of finance regulation no. 132/pmk.01/2006 about organization and working procedure of vertical institution of directorate general of taxation. as already revoked and declared invalid by the minister of finance regulation no. 206.2/pmk.01/2014 on the organization and administration of vertical institutions of the directorate general of taxation. semarang tax service office has the main duty in collecting tax revenue that has been targeted, because one of the most important source of state revenue is derived from the tax sector. as already known that the following is the data on the number of taxpayers in the office of tax service semarang city: table 1 number of taxpayers year number of taxpayers target of tax receipts 2014 1.265 9.117.423.669.000 2015 1.271 16.263.966.928.000 2016 1.457 18.618.437.504.000 source: tax office semarang (2017) the tax target achievement, it needs to continually grow the awareness and compliance of taxpayers to meet tax obligations under an applicable regulation. considering taxpayer’s awareness and compliance is an important factor for tax revenues. thus the semarang tax service office implements the pillars of bureaucratic reform improving the compliance of taxpayers. based on the description that has been put forward in the background above, it can be taken several issues to be discussed, including: 9 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 1. why do urgent implementation of bureaucratic reform pillar implemented at semarang tax office? 2. how is the implementation of the bureaucratic reform pillars in improving the compliance of taxpayers at the semarang tax service office? based on the description above, the research method used is a qualitative research approach that gives a detailed, systematic and comprehensive description of the implementation of the bureaucratic reform pillars in improving taxpayer compliance at the office of tax service semarang city. a socio juridical research is a juridical related to legislation. sociologically, it focused on the implementation of legal effectiveness, legal rules or rules of law itself, employees, facilities at the tax office madya semarang, taxpayer compliance. the urgency implementation of bureaucratic reform pillars in the semarang tax service office bureucratic reform is one way to build people’s trust. bureaucratic reform itself is an attempt to change the principal in a system whose purpose is to change the structure, behavior, and the existence or habit that has long. bureaucratic reform is not only limited to processes and procedures, but also links changes in the level of structure, attitude, and behavior. furthermore, foster and jones (1978) explained concerning to weber’s model of bureaucracy, that heavily emphasized rules, hierarchical authority, and obedience. two of the primary principles in his ―essay on bureaucracy‖ are the existence of ―fixed and official jurisdictional areas which are generally ordered by rules,‖ and the creation of an ―office hierarchy and of graded levels of authority‖. sedarmayanti (2009) stated that bureaucratic reform is a government effort to improve performance through various means with effectiveness, efficiency and accountability. further, azizi (2007) stressed that the main buffer of reform is good governance one of the main basic is a good bureaucratic. with a good governance and supported by bureaucratic in accordance with demands can be realized sustainable government to carry out the mandate of the people. another scholar, kasim (2013) emphasized that government of indonesia has launched bureaucratic reform that aims to develop clean, efficient, effective and productive bureaucracies. the reform is designed to create transparent bureaucracy which serves the people and accountable to the public. the purpose of bureaucratic reform is to increase government’s bureaucracy performance. tachjan (2006) pointed out that the components in the public policy implementation system consist of: 1. program (policy) implemented. 2. target groups, it is a community groups that are targeted, and are expected to receive benefits from the program, changes or upgrades. 10 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang suwandoko, rodiyah jils 3 (1) may 2018, 5-28 http://journal.unnes.ac.id/sju/index.php/jils 3. the implementing elements, whether organizations or individuals, are responsible for the management, implementation and supervision of the implementation process. 4. environmental factors (physical, social, cultural and political). wihantoro, et.al. (2015) stated that the bureaucratic reform initiatives at the tax office are appraised due to its direct impact and significance of its services to the public. according to transparency international, these initiatives are significant and observable. in a study of tax or finance managers, who are responsible for dealing with the indonesian tax office, calculating tax and/or deciding overall tax payment processes, it was reported that current tax administration has improved. the tax compliance itself, this concern about the deterioration in voluntary tax compliance has produced a myriad of research (for review, see schadewald, 1989; nam et al., 2002; hite and hasseldine, 2003; bobek and hatfield, 2003). previous researchers have examined how individual compliance is affected by age (tittle, 1980; grasmick et al., 1984), sex (minor, 1978; grasmick and scott, 1980), income source (madeo et al., 1985), occupation (mason and calvin, 1978; westat, 1980), fairness (yankelovich et al. 1984; etzioni, 1986), complexity (sanders and wyndelts, 1989; magro, 1999; spilker et al., 1999), tax rates (mason and calvin, 1984; keller, 1998), tax compliance costs (nam et.al., 2002), audit adjustments (chan and mo, 2002) and moral obligation (bobek and hatfield, 2003). however, on this study—on semarang tax office—there are several aspects of the urgency of the implementation of the bureaucratic pilars reform in the semarang tax office, such as: 1. philosophical aspect related to the implementation of the bureaucratic pillars reform in the semarang tax office in line with the philosophy of the indonesian nation that is pancasila. 2. sociological aspect a. semarang tax service office applying the basic principles of good corporate governance that is needed to encourage the creation of an efficient, transparent and consistent bureaucratic. b. semarang tax service office prevents the existence of corruption level of tax administration in public sector organizations. c. semarang tax service office prevents the incidence of corruption of tax administration in public sector organizations (training module of modern administration system of change by taxes management directorate general regional office of central java i). 3. juridical aspect the juridical aspect related to the implementation of the bureaucratic pillars reform at the semarang tax office, are: a. 1945 constitution b. law number 28 of 1999 on the implementation of a clean and free state of corruption, collusion and nepotism c. law number 17 year 2003 regarding state finances 11 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 d. law number 11 year 2016 on tax amnesty e. presidential regulation no. 81/2010 on the grand design of bureaucratic reform 2010-2025 f. minister of finance republic indonesia regulation number 161/pmk. 01/2012 on the second amendment of the minister of finance regulation no. 29/pmk.01/2007 on guidelines for improving discipline of civil servants in the ministry of finance g. minister of finance regulation no. 206.2/pmk.01/2014 on the organization and working procedures of vertical institutions of the directorate general of taxation h. minister of finance decree no. 185/kmk.01/2012 on amendment to the minister of finance decree no. 345/kmk.01/2011 concerning road map of bureaucratic reform of the ministry of finance year 2010-2014 the implementation of bureaucratic reform pillars in improvement of the taxpayer compliance in the semarang tax service office internal and external demands have made the semarang tax service office a step to increase high taxpayer compliance, increase trust to high tax administration, increase tax revenue, increase integrity and high employee productivity. in this case, the implementation model used to analyze the pillars of bureaucratic reform at the semarang tax service office is a model of van meter and van horn, which is influenced by several independent variables that are related, the variables are: 1. standard and policy objectives of bureaucratic reform pillar at semarang tax office a. pillar of organizational structuring implementation of bureaucratic reform pillar at semarang tax office related to organizational structuring standard is done to anticipate environmental changes both internal and external in order to create an organizational structure and culture that is able to reflect and transform tasks and functions carried by the organization. the organizational structure is a framework in a fixed pattern of relationships among functions, units, or positions, as well as persons who show different positions, duties, powers and responsibilities within an organization. the organizational chart is a picture of an organizational structure that shows the composition of functions, units or positions and shows how relationships between them. separate organizational units are usually depicted in boxes, 12 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang suwandoko, rodiyah jils 3 (1) may 2018, 5-28 http://journal.unnes.ac.id/sju/index.php/jils connected to each other with lines indicating the chain of commands and lines of communication. the implementation of bureaucratic reform pillars in semarang tax service office related organizational structuring goals, are: 1). to provide direction and reference for semarang tax office semarang in organizational structuring accordance with organizational principles, procedures and regulations apply. 2). to ensure that any organizational structuring does not prioritize the interests of individual organizational units, but prioritizes the interests of the organization of the semarang tax office as a whole. 3). to realize a more effective and efficient organization in carrying out tax administration and in accordance with the development and demands of society, and technological advances in all units of the organization within the semarang tax office in order to realize good governance. b. pillar of business process improvement the implementation of bureaucratic reform pillars at semarang tax office related to pillar standard of business process improvement to information and communication technology is formed by referring to applicable law instrument, industry standard, and internal requirement at semarang tax office refers to director general of tax regulation number per-37 / pj / 2010 on the information technology and communication governance policy of the directorate general of taxation. implementation of the bureaucratic reform pillars in the semarang tax service office related to the policy objectives of business process improvement in the field of information and communication technology, namely: 1). provide clear reference to the establishment of information and communication technology. 2). organize and manage the entire planning process, realization, daily operations, security, service continuity, and internal evaluation of information and communication technology through a firm and transparent leadership path. 3). support in modernization in the field of information and communication technology. implementation of pillars of bureaucratic reform at semarang tax office related to standard of business process improvement in the field of facilities and infrastructure, namely: 1). facilities and infrastructure are conducted on the basis of orderly, fair, transparent, efficient and effective principles, benefits, safety, prosperity, decency and accountability. 2). facilities and infrastructure are prepared in accordance with the needs and by type of undertaken work. 13 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 implementation of bureaucratic reform pillar at semarang tax office related to policy objectives of business process improvement in the field of facilities and infrastructure, are: 1). facilities and infrastructure to support the implementation of an apparatus work process in improving performance in accordance with the duties and responsibilities. 2). facilities and services aim to a fluent work process, fluent internal and external work relations among officials, facilitate communication, fluent supervision and security tasks and facilitate the safeguarding of archives and documentation 3). facilities and infrastructure aims to provide an excellent service to taxpayers. implementation of bureaucratic reformation pillar at semarang tax office related to standard of business process improvement in taxpayer service field referring to director general of tax regulation number per-27/pj/2016 on service standard in integrated service area of tax service office, as amended director general of tax regulation no. per-02/pj/ 2017 on amendment to the director general of tax regulation no. per-27/pj/2016 on service standards in integrated service place of tax service office. implementation of the bureaucratic reform pillars at semarang tax office related to the policy objectives of business process improvement in the field of taxpayer services, are: 1). service standard is a benchmark that is used as guideline of service delivery and service quality assessment. 2). service standard aims to provide certainty, improve the quality and service performance in accordance with the needs of taxpayers and aligned with the ability of employees at the semarang tax office to gain the trust of taxpayers. 3). creating the spirit of excellent service by employees at the semarang tax office to improve taxpayer compliance. c. pillar of discipline improvement and human resources (hr) the implementation of bureaucratic reform pillars at semarang tax office related to pillar of discipline improvement activities and human resources (hr), are: 1). employees at the semarang tax office maintain and uphold high moral and ethical standards. 2). employees at the semarang tax office apply the rights and obligations professionally and without any intervention from any party. 3). employees at the semarang tax office implement the provisions of legislation related to employee discipline. 4). employees at the semarang tax office show integrity and exemplary attitude and behavior. 14 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang suwandoko, rodiyah jils 3 (1) may 2018, 5-28 http://journal.unnes.ac.id/sju/index.php/jils the implementation of bureaucratic reform pillars at semarang tax office related to the goals of disciplinary and human resource improvement policies, are: 1). supporting effective, efficient and open state governance, and free from corrupt, collusion and nepotism practices. 2). realizing employees at the semarang tax office that is dynamic and cultured in achieving performance. 3). ensure the formation of employees at the semarang tax office that is respected by the society to improve the compliance of taxpayers. 2. resources of bureaucratic reform pillar at semarang tax office a. pillar of organizational structuring the implementation of bureaucratic reform pillars at semarang tax office related to resources of organizational structuring refers to the minister of finance regulation no. 206.2/pmk.01/2014 on the organization and working procedures of vertical institutions of the directorate general of taxation and in accordance with the director general of tax decree no. kep134/pj/2015 concerning amendment to the director general of taxes decree number kep-31/pj/2015 concerning implementation of organization, work procedure and operation time of vertical institution of directorate general of taxation as regulated in the minister of finance regulation no. 206.2/pmk.01/2014 on organization and working procedures of vertical institution of directorate general of taxation. b. pillar of business process improvement the implementation of bureaucratic reform pillars at semarang tax office related to resources business process improvement in the field of information technology and comunication, are: 1). the ability of employees in utilizing information and communication technology to serve taxpayers more effectively and efficiently. 2). the development of data processing and taxation duties that are tasked to process taxation data and documents to be accessed quickly and accurately by employees at the semarang tax service office. the implementation of bureaucratic reform pillars at semarang tax office related to resources busines process improvement in the field of facilities and infrastructure, are: 1). professional facilities and infrastructure that direct employees at the semarang tax office in completing the work easier and get maximum efficiency and effectiveness in the service to the taxpayer. 15 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 2). increase work productivity by employees at the semarang tax service office. the implementation of bureaucratic reform pillars at semarang tax office related to resources busines process improvement in the field service to the taxpayers are the realization of the purpose of improving the service, has been made efforts to improve and/ or improve services, including transparency of business processes, establish and/ or shorten the norm of service completion time, cost certainty information and service administration requirements, and improve the quality of service results. c. pillar of discipline improvement and human resources (hr) the implementation of bureaucratic reform pillars at semarang tax office related to the resources of discipline improvement and human resources (hr), are: 1). improving the ability of employees at the semarang tax office optimally, qualified and ideal. 2). semarang tax service office having professional and responsible human resources that will improve the efficiency and effectiveness of services to the community. 3. characteristics of organizers executing bureaucratic reform pillar at semarang tax office a. pillars of organizational structuring the implementation of bureaucratic reform pillars at semarang tax office related to characteristic of execution organizer are the separation and sharpening of organizational functions that can create an organizational structure that produces quality policies and can provide the best service to the community. the orientation of public aspirations have been made the semarang tax office as a bureaucratic organization sensitive to the demands of public services, produce policies, and a fair and a rational services. b. pillars of business process improvement the implementation of bureaucratic reform pillars at semarang tax office related to character of organization of business process improvement in the field of information and communication technology, which is very confidential, confidential, limited and public. the policies and rules for the use of information assets are established and apply to all employees and the third parties. the implementation of bureaucratic reform pillars at semarang tax office related to character of organization of business process improvement in the field of facilities and infrastructure, are: 1). facilities and infrastructure to support the performance process of employees at the semarang tax office more effective and efficient. 16 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang suwandoko, rodiyah jils 3 (1) may 2018, 5-28 http://journal.unnes.ac.id/sju/index.php/jils 2). facilities and infrastructure to facilitate working relationships and in accordance with the needs and meet the requirements that have been set. the implementation of bureaucratic reform pillars at semarang tax office related to characteristics the organization of business process improvement in the field of the service to the taxpayers that is simple, sure, open, fair, timely. the services provided by the semarang tax office prioritize the general welfare in an aspiration, accommodative, and selective manner, with the intention of requiring the semarang tax service office to prioritize service interests. c. pillars of discipline improvement and human resources (hr) the implementation of bureaucratic reform pillars at semarang tax office related to characteristics the organization of discipline improvement and human resources (hr), that is the employees at the semarang tax office act consistently in accordance with the values and policies of the organization and professional code ethics. 4. communication between related organizations and activities of the implementation of bureaucratic reform pillar at semarang tax service office a. pillar of organizational structuring the implementation of bureaucratic reform pillars at semarang tax office related to communication between related organizations and activities, are: 1). communication within the organization has the functions to implement policies or regulations, provide guidance or instruction on work procedures, submit directives or doctrine, evaluate, reprimand, provide information about organizational goals, incentive organizational policies and provide explanations. 2). communication within the organization to improve coordination of tasks, problem-solving efforts, information sharing, conflict resolution efforts and fostering family relationships among members of the organization for better intertwining. 3). communication within the organization that unites each employee at the semarang tax office to have the same vision and mission. b. pillar of business process improvement implementation of bureaucratic reform pillar at semarang tax office to communication between related organization and implementation activities of business process improvement in information and communication technology, that is through electronic media that can give well information that will result to employees to get more information , better effective and efficient. 17 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 information obtained will make the employees at the semarang tax office understand about what to do. implementation of bureaucratic reform pillar at semarang tax office to communication between related organizations and activities of business process improvement in the field of facilities and infrastructure are to support the communication process and provide information in an efficient and efficient manner. implementation of bureaucratic reform pillars at semarang tax office to communication between related organizations and implementation activities of business process improvement in the field of service to taxpayers, which is communication between employees of semarang tax office that can realize the effective and efficient and efficient service. c. pillar of discipline improvement and human resources (hr) implementation of bureaucratic reform pillar at semarang tax office to communication between related organizations and discipline improvement activities and human resources (hr) are communication that aims to control the behavior of members of the organization and keep the members of the organization to comply with rules and orders that have been set together. 5. attitude of the pillars of bureaucratic reformers at the semarang tax service offices a. pillar of organizational structuring the implementation of bureaucratic reform pillar at semarang tax office related attitude of organizational managers, namely: 1). semarang tax service office has a broad and far-reaching perspective on good governance. 2). semarang tax service office committed to the vision and mission that has been determined. 3). semarang tax service office prioritizes the basis of legislation, compliance, justice and ethics. b. pillar of business process improvement the implementation of bureaucratic reform pillar at semarang tax office semarang related attitude of perfection of business process executor in information and communication technology, that is:: 1). semarang tax service office maintains the credibility so that the information submitted is accurate, balanced. 2). the existence of synergy and harmonization of data, information, and fact conveyed really beneficial to the taxpayer. 3). semarang tax service office provides and delivers information based on the applicable legislation. the implementation of the bureaucratic reform pillar in semarang tax office related to the attitude of the implementers of 18 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang suwandoko, rodiyah jils 3 (1) may 2018, 5-28 http://journal.unnes.ac.id/sju/index.php/jils business process improvement in the field of facilities and infrastructure are the semarang tax service office develop facilities and infrastructure that can be utilized for long term in supporting employee performance, therefore utilization and maintenance are needed. the purpose of maintenance activities is to maintain facilities and infrastructure on an ongoing basis, the guarantee of the quality of facilities and infrastructure as well as the sustainable advantage of the utilization of facilities and infrastructure. implementation of the bureaucratic reform pillars at the semarang tax office related to the attitude of the implementers of business process improvement in the field of service to the taxpayer, are: 1). services provided by employees at the semarang tax office to the taxpayer have certainty and clarity in accordance with applicable provisions. 2). services provided by employees at the semarang tax office are effective and efficient also provide satisfaction to the taxpayer. 3). services provided by employees at the semarang tax service office showed an excellent service that is more humanist and friendly with taxpayers. c. pillar of discipline improvement and human resources (hr) implementation of the bureaucratic reform pillars at the semarang tax office related to the attitude of the implementers to improve the discipline and human resources (hr), namely: 1). discipline is not only in the form of obedience but also the responsibility given by the organization, based on it, the effectiveness of employees increase and they get discipline behavior. 2). employees at the semarang tax office work honestly, orderly, meticulous, and eager. 3). employees at the semarang tax office work professionally and morally as a government organizers who apply the principles of good governance. 6. social, economic, and political environment of bureaucratic reform pillars in semarang tax service office a. pilar of organizational structuring implementation of the bureaucratic reform pillars at the semarang tax office related social environment, economic and political organizational structuring, namely: 1). social environment on organizational structuring that influenced by the organizational structure which is still based on the type of tax that is less effective and efficient in service to the taxpayer. so that the separation and sharpening of organizational functions that can affect the effectiveness of services to the community. 19 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 2). the economic environment in organizational structure is influenced by the assumption that taxes play a vital role for state revenues to support sustainable national development. 3). the political environment on organizational structuring is influenced by the laws and regulations such as presidential regulation no. 81/2010 on the grand design of bureaucratic reform 2010-2025, minister of finance regulation no. 206.2/pmk.01/2014 on the organization and working procedures of vertical institutions of the taxation directorate general and of minister of finance decree no. 185/kmk.01/2012 amendment to minister of finance decree number345/kmk/01/2011 on road map of bureaucratic reform of ministry of finance of 2010-2014 which in that case can accommodate organizational arrangement at semarang tax office that reflecting better governance. b. pillar of business process improvement implementation of the bureaucratic reform pillars at semarang tax office related social environment, economic and political improvement of business process in information and communication technology, that is:: 1). the social environment in the improvement of business processes in the field of information and communication technology that is influenced by the aim of delivery service and supervision that is less than the maximum and complaints by internal employees is the inaccuracy of data in addition to the lack of data and information available on the database. taxpayer difficulties in obtaining information related to taxation. so the development of information systems directorate general of tax (si djp) is a national tax system based website 2). the economic environment in the improvement of business processes in the field of information and communication technology is influenced by the assumption that taxes play an important role for state revenue to support sustainable national development. 3). the political environment on the improvement of business processes in the field of information and communication technology influenced by the laws and regulations such as minister of finance decree no. 185/kmk.01/2012 on amendment to minister of finance decree number345/kmk/01/2011 on road map bureaucratic reform ministry finance year 2010-2014 and director general of tax regulation no. per-37/pj/2010 on information and communication technology governance policy of the taxation directorate general which in this case may accommodate the effectiveness and efficiency improvement of the provincial 20 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang suwandoko, rodiyah jils 3 (1) may 2018, 5-28 http://journal.unnes.ac.id/sju/index.php/jils planning, realization, daily operations, service continuity, and internal evaluation of information and communication technology implementation at semarang tax office. implementation of the bureaucratic reform pillars at the semarang tax office related to social environment, economic and political improvement of business processes in the field of facilities and infrastructure, namely: 1). social environment on the improvement of business processes in the field of facilities and infrastructure influenced by the increased comfort of the work environment that gives satisfaction to the convenience of taxpayers and comfort of employees carry out their work and improvement of services to taxpayers. 2). the economic environment in the improvement of business processes in the field of facilities and infrastructure is influenced by the assumption that taxes play an important role for state revenues to support sustainable national development. 3). the political environment in the improvement of business processes in the field of facilities and infrastructure influenced by the laws and regulations such as minister of finance decree no. 185/kmk.01/2012 on amendment to minister of finance decree number 345/kmk/01/2011 on road map bureaucratic reform of the ministry of finance year 2010-2014 which in that case can accommodate improvement of work environment comfort and improvement of service. implementation of the pillars of bureaucratic reform at semarang tax office related to social environment, economic and politics improvement of business processes in the field of services to taxpayers, namely: 1). social environment on the improvement of business processes in the field of services to the taxpayers affected by the improvement of the excellent service spirit can provide a sense of satisfaction and comfort in taxpayers. 2). the economic environment in the improvement of business processes in the field of service to taxpayers who influenced the assumption that taxes play an important role for the acceptance of the state to support sustainable national development. 3). the political environment in the improvement of business processes in the field of services to the taxpayers affected by the laws and regulations such as minister of finance decree no. 185/kmk.01/ 2012 on amendment to minister of finance decree number 345/kmk/ 01/2011 on road map bureaucratic reform ministry finance year 2010-2014 and directorate general of tax regulation no. per-27/pj/ 2016 on service standards in integrated service areas tax service office in 21 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 which case can accommodate the improvement of excellent service and justice in providing services to taxpayers. c. pillar of discipline improvement and human resources (hr) implementation of bureaucratic reform pillar at semarang tax office related social environment, economics and politics improvement of discipline and human resources (hr), that is: 1). social environment on the improvement of business processes in the field of services to taxpayers who are influenced by professional performance improvement, full of ethics and moral. 2). the economic environment in the improvement of business processes in the field of service to taxpayers who influenced the assumption that taxes play an important role for the acceptance of the state to support sustainable national development. 3). political environment on the improvement of business processes in the field of services to taxpayers affected by the law and regulations including minister of finance regulation of the republic of indonesia number 161/pmk. 01/2012 on the second amendment of the minister of finance regulation no.29/pmk.01/2007 on guidelines for improving discipline of civil servants within the ministry of finance and minister of finance decree no. 185/kmk.01/2012 on amendment to minister of finance decree number345/kmk/01/2011 on the road map of bureaucratic reform ministry of finance year 2010-2014 which in this case can accommodate the improvement of ethics and morality which is implemented in synergy and professional. 7. policy performance of bureaucratic reform pillar at semarang tax office a. pillar of organizational structuring implementation of the pillars of bureaucratic reform in the semarang tax service office related to the performance of organizational structuring policy, namely the organization arrangement in accordance with the vision and mission of the semarang tax office. in the context of organizational structuring management, an evaluation process is needed for performance within the organization. the evaluation process of organizational performance is important, because without evaluation, it will not be known to what extent the organization has effectively made changes to the vision and mission of its. from the evaluation results, it can be known what deficiencies in realizing a sustainable organization and then remedial measures to improve the existing conditions can be done. b. pillar of business process improvement implementation of the bureaucratic reformation pillars at semarang tax office related to the performance of business process 22 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang suwandoko, rodiyah jils 3 (1) may 2018, 5-28 http://journal.unnes.ac.id/sju/index.php/jils improvement policy in information and communication technology, information and communication technology governance at semarang tax office is a framework that manages the whole process of planning, realization, daily operation, security, service continuity, and internal evaluations of the operations through a firm and transparent leadership path. implementation of bureaucratic reform pillar at semarang tax office related performance of performance policy implementer of business process improvement in field of facility and infrastructure, that is in semarang tax office in a process of work and or service in an organization involving coordination between parts and arranged with operational procedure and supported by adequate facilities and infrastructure. in the replacement of existing facilities and infrastructure in the form of replacement office furniture such as work tables, work chairs, taxpayer waiting seats, service reshuffle to taxpayers, replacement of computers and printers and the existence of queuing machines to provide clarity in the queue of services. also create a fluent job process and maximize service to taxpayers. service room is neatly arranged, waiting room equipped with air conditioning, mobilephone charger and free internet service and provided brochure or leaflet about taxation service procedure, so that service process more comfortable and effective. implementation of the bureaucratic reformation pillars at the semarang tax office related to performance performance policy implementers perfection of business processes in the field of service to the taxpayer is making a superior service program to the community. the excellent service is as follows: 1). the excellent service can improve transparency.. 2). the excellent service simplifies business processes within the semarang tax service office. 3). the excellent services can avoid abuse of power from the authorities. 4). the excellent services provide services supported by more professional and competent apparatus. 5). excellent services can avoid practices of corrupt, collusion and nepotism. c. pillar of discipline improvement and human resources (hr) implementation of the bureaucratic reform pillars at semarang tax service office related to the policy performance of improving the quality of human resources (hr). therefore, to obtain adequate human resources (hr) is needed structuring and personnel recruitment system, payroll system, training implementation, and improvement of welfare. moreover, it also by doing soft-skill mapping, improving the remuneration, improving career ladder, competence and education, improving the education 23 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 and training system, improving the positioning determination side, and internalizing the new value of the organization through the application of the ethic codes. with the aim to create a healthier organizational culture that is able to motivate human resources to work more diligently in providing the best service to the wider community, especially to the taxpayer. reforms on human resources are also applied to the enforcement of civil servant discipline which is a bureaucratic reform that implemented refer to the following legislation, minister of finance regulation of the republic of indonesia number 161/pmk. 01/2012 on the second amendment of minister of finance regulation no. 29/pmk.01/2007 on guidelines for improving discipline of civil servants in ministry of finance environment. so the result of an increase in discipline and human resources at the semarang tax office is that it has a professional and responsible human resources that will improve the efficiency and effectiveness of services to the community. tax collection is a manifestation of the obligations and the role of the taxpayer directly and performing the tax obligations required for state financing and national development. tax is the state's acceptance of a prosperous society. related to this semarang tax office implement the implementation of the bureaucratic reform pillars to improve taxpayer compliance. results of taxpayer compliance with the implementation of bureaucratic reform pillars, as follows: table 2 taxpayers compliance year number of taxpayers tax acceptance target taxpayer pay tax acceptance 2014 1.265 9.117.423.669.000 1.225 8.990.775.878.178 2015 1.271 16.263.966.928.000 1.226 11.984.150.575.100 2016 1.457 18.618.437.504.000 1.252 13.717.172.651.629 source: semarang tax service office (2017) based on the above table, it can be seen that the taxpayers compliance rate in semarang tax office is less than optimal as it is known that in 2014 the tax compliance rate is 96%, 2015 of tax compliance rate 96%, 2016 taxpayer compliance 85%. as well as the level of tax revenue is less than optimal as it is known that in 2014 98% tax revenue rate, by 2015 the rate of tax revenue 73%, in 2016 the rate of tax receipts 73%. there is a certain that implementation of bureaucratic reform faced certain obstacles, as well as in the implementation of the bureaucratic reform pillars in improving taxpayer compliance at the semarang tax service office, based on interviews with dwi pratomo putra as an employee in the general sub-division and internal compliance of semarang, semarang, september 2017, as follows: 24 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang suwandoko, rodiyah jils 3 (1) may 2018, 5-28 http://journal.unnes.ac.id/sju/index.php/jils 1. there are still less optimal employees in the field of taxation and mastery of information technology operations.. 2. there are still non-compliant taxpayers in the payment and tax reporting. based on interviews with dwi pratomo putra as an employee in the general sub division and internal compliance of semarang tax office, september 08th, 2017, the efforts undertaken to overcome obstacles in the implementation of the bureaucratic reform pillars in improving taxpayer compliance at the semarang tax office, as follows: 1. the implementation ssocialization of bureaucratic reform pillar in the semarang tax service office addressed to taxpayers and employees. socialization to employees at the semarang tax office is done by training, workshop, and corporate value internalization (icv). 2. while socialization to taxpayers at the semarang tax officeis done through counseling, discussions with taxpayers and public figures, electronic media, print media, on-line. improve taxpayer compliance in carrying out its tax obligations, by providing an appeal and counseling, as well as law enforcement consisting of examination, investigation and billing. conclusion urgency implementation of the bureaucratic reformation pillar at the semarang tax office consists of philosophical, sociological and juridical aspects. implementation of bureaucratic reform pillars in improving taxpayer compliance at semarang tax office. in this case using the implementation model of van meter and van horn, which is influenced by several interrelated independent variables such as standards and policy targets, resources, organizational characteristics of implementers, communication between related organizations and implementation activities, attitudes of the implementers, the environment social, economic, and political, policy performance on three bureaucratic reform pillars that is organizational structuring, business process improvement, improvement of discipline and human resource (hr). shows that taxpayer compliance level is less than optimal and the level of tax revenue is less than optimal. this case due to the obstacles experienced are still the existence of employees who are less than optimal in the field of taxation and control of the operation of information technology and still the existence of taxpayers who are less obedient in payment and tax reporting. efforts are made to improve the ability of employees in the field of taxation and information technology through socialization with the form of training, workshops, corporate value internalization (icv). to improve taxpayer compliance through socialization with the form of counseling, discussions with taxpayers and public figures, 25 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 socialization on electronic media, socialization on print media, on-line socialization. and carry out its tax obligations by providing counseling and counseling, as well as law enforcement. bibliography bobek, d.d., richard c hatfield. ―an investigation of the theory of planned behavior and the role of moral obligation in tax compliance.‖ behavioral research in accounting, 2003 15(1): 14-38. chan, k. hung, and phyllis l.l mo. ―the impact of firm characteristic on book tax-conforming and 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(1) 2019, pp. 73-88 issn (print) 2548-1584 issn (online) 2548-1592 the implementation of diversion and restorative justice in the juvenile criminal justice system in indonesia wikan sinatrio wikan sinatrio postgraduate program, faculty of law, universitas diponegoro semarang, indonesia  wikansinatrio@gmail.com table of contents introduction ………………………………………………….….. 75 the policy of diversion and restorative justice formulation in the perspective of law number 11 of 2012 on the juvenile criminal justice system .… 76 diversion and restorative justice formulation in the perspective of supreme court regulation number 4 of 2014 on guidelines for the implementation of diversity in the criminal justice system of children ………………………………… 78 conclusion ………………………………………………………… 86 references …………………………………………………………. 41 10.15294/jils.v4i01.23339 copyright © 2019 by author(s) this work is licensed under a creative commons attributionsharealike 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. jils (journal of indonesian legal studies) mailto:wikansinatrio@gmail.com 74 http://journal.unnes.ac.id/sju/index.php/jils wikan sinatrio jils 4 (1) may 2019, 73-88 article info abstract submitted on may 2018 approved on december 2018 published on may 2019 children are a younger generation successor to the nation that must be protected. in some cases children can do a mischief that fall into the categories of offenses and called as children in conflict with the law. children in conflict with the law have different in terms of handling the criminal offenses committed by adults. currently with law number 11 of 2012 on the criminal justice system of children (sppa) which has sought diversion and restorative justice in terms of handling child conflict with the law. from the results of this study concluded that the policy formulation the concept of diversion and restorative justice pursuant to law number 11 of 2012 on the criminal justice system of children (sppa) and its implementation rules have been set regarding policy concept of diversion and restorative justice with the aim that children who commit acts the criminal is no longer confronted in the judicial process but through an alternative solution, namely the completion of which is the restoration to its original state (restorative justice) will but of formulating the policy is still not perfect because it found some weakness. while in the implementation of diversion and restorative justice in the settlement of children in conflict with the law in pati district court already sought remedies which reflect restorative justice approach by implementing law enforcement diversion and restorative justice but there are still many obstacles occurred in the settlement of children in conflict with the law in pati district court. keywords: diversion, restorative justice, children in conflict with the law how to cite (chicago manual style) sinatrio, wikan. “the implementation of diversion and restorative justice in the juvenile criminal justice system in indonesia”, jils (journal of indonesian legal studies), 4 (1), 2019: 73-88 75 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 introduction one of the main elements of a lawful state is equality before the law. article 27 paragraph (1) of the 1945 constitution of the republic of indonesia states that: all citizens shall have equal positions in law and government and shall uphold such law and government with no exception. given the equal status before the law and government, every citizen who is found to be in violation of applicable law will get sanction according to the deed done. it can be said that the law does not see who it is officials, civilians or the military. if it violates the law will get sanction according to the deeds done. but the law provides a special view in the application of law to children. there are special approaches that are conducted solely for the child’s own interests and welfare (djamil 2013; bouffard, cooper, and bergseth 2016; hirschi 2017). children are part of the young generation and as one of the human resources that is the bud, the potential and successor ideals of the struggle of the nation in the future, and has a strategic role. furthermore, it has special characteristics that guarantee the continuity of the existence of nation and state in the future. every child will be able to assume the responsibility. therefore, children need to get the widest opportunity to grow and develop optimally both physically, mentally and socially, and morals. protection needs to be done as well as to realize the welfare of children by providing guarantees to the fulfillment of all rights and recognition without discrimination (djamil 2013; may, osmond, and billick 2014). childhood is the period of seed sowing, the establishment of piles, making the foundation that can be called as well as the period of character formation, personality and character of a human self. aiming that they will have the strength and ability, and stand tall in life (gultom 2008; arifin 2018; burfeind & bartusch 2015). one of the prevention and prevention efforts of children facing the law today through the implementation of the juvenile criminal justice system (sistem peradilan pidana anak, sppa). the purpose of organizing the criminal justice system is not only to impose criminal sanctions, but to focus more on the accountability of perpetrators of victims of crime, commonly referred to as the restorative justice approach. the purpose of restorative justice is for the welfare of the child concerned, without prejudice to the interests of the victims and the community. in indonesian context, law number 11 of 2012 on sppa which entered into force in july 2014 has had permanent legal force to be implemented after it was ratified. in the law referred to in article 6 to article 15 there is a diversion provision which is a renewal in the child criminal justice system. diversion is an act or treatment transferring a case from formal to informal process, or placing out child offender from sppa (marlina 2009; hardjaloka 2015; davies & robson 2016). this means that not all child matters in conflict with the law must be resolved through the formal justice system and provide alternative solutions by using restorative justice 76 http://journal.unnes.ac.id/sju/index.php/jils wikan sinatrio jils 4 (1) may 2019, 73-88 approaches for the best interests of the child and considering justice for the victims and the community (friedlander 2013; siegel & welsh 2014; wahyudi 2009; maskur 2012). currently, one of the efforts to prevent and overcome children in conflict with law is through the criminal justice system of children. this is expected to give maximum protection for the interest of children who should live as the best interests for the survival of mankind (wahyudi 2010; shoemaker 2017; petrisono et.al 2013). the purpose of organizing the juvenile justice system is not only to impose criminal sanctions on the perpetrators. however, more focused on the premise that the imposition of sanctions as a means of supporting and realizing the welfare of children of criminals. therefore, handling of cases of children in conflict with the law (abh) must be distinguished from handling to adults. there should be special approaches in solving child cases against the law, and mainly using a restorative-based or recovery approach. the policy of diversion and restorative justice formulation in the perspective of law number 11 of 2012 on the juvenile criminal justice system with the existence of law number 11 of 2012, the concept of diversion and restorative justice has been regulated in this law that is in chapter ii which specifically regulates the provision of diversion based on the approach of restorative justice from article 6 to article 15 means that there are 10 articles regulates the diversion provisions at all stages of examination from investigation, prosecution and trial in a court of law in the settlement of cases of children in conflict with the law. a formal criminal law, also called a criminal procedural law, is a law governing how a country with its equipment intermediaries exercises its right to impose criminal sanctions (sudarto 2009). thus the procedural law of child criminal justice is a regulation that arranges for abstract child criminal law applied in concrete (djamil 2013). in law number 11 of 2012 regarding the criminal justice of children in chapter iii from article 16 to article 62 means there are 47 articles regulating the juvenile criminal procedural law, and there are diversion arrangements at every level of investigation, at the level of investigation, prosecution and examination in court. basically, law number 11 of 2012 on child criminal justice system has regulated the efforts of diversion and restorative justice approach in settling cases of children in conflict with the law. however, in the law also found some weaknesses in its implementation are: 77 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 1) regarding the provision of diversion in article 7 paragraph (2) subparagraph a of law number 11 of 2012 regarding the criminal justice system of the child which determines the requirement that a diversion process be conducted in the event of a criminal offense is punishable by imprisonment under 7 (seven) years. this provision automatically precludes attempts of child-diverting in cases where a criminal offense is punishable by imprisonment of 7 (seven) years or more. this article is a reflection of the concept of the concept of the sppa law in understanding the protection of the child in which the philosophical foundation of the protection of the child is to remember that the child has a lack of physical and cyclical power so that to be criminally liable for the deed done, a child has not been able because his lack of mental stability to understand the deeds he performed. so in the case of handling children in conflict with the law must be handled specifically. the tendency in child-handling practices in conflict with the law is often seen as a miniature of adults so that the application of transfer efforts through the outer court through diversion and restorative justice still uses an indicator of the severity of the criminal threat perpetrated by the offending child. this has led to discrimination in handling the settlement of cases of children in conflict with the law by applying different treatment in the case of children subject to imprisonment under 7 (seven) years and children who are punishable by imprisonment of 7 (seven) years or more. this provision does not reflect the approach of restorative justice in the settlement of children in conflict with the law. 2) referring to article 108 of law no. 11 of 2012 on the criminal justice system of the child that this law is valid after 2 (two) years as from the date of promulgation. therefore, the obligation as regulated in article 105 of law number 11 of 2012 on child criminal justice system is in the case of preparing facilities and infrastructure and human resources of special law enforcers of children, it can be implemented at the latest 5 (five) years after the law, this law is in force. however, the absence of clear regulation on the obligations of the government to prepare and build facilities and infrastructure of law enforcement supporters for children committing crimes during this transitional period. for example, there is no national prisons (bapas) in every regency or city, there is not yet the availability of supporting infrastructure for the implementation of diversion such as special room for diversion, and the limited human resources of law enforcers who specifically handle, have the interest and ability to resolve cases of children in conflict with the law in every the level of the criminal justice system. 78 http://journal.unnes.ac.id/sju/index.php/jils wikan sinatrio jils 4 (1) may 2019, 73-88 diversion and restorative justice formulation in the perspective of supreme court regulation number 4 of 2014 on guidelines for the implementation of diversity in the criminal justice system of children judging from the perspective of constitutional law especially in the practice of governing the government and the system of laws and regulations, the position of the supreme court regulation of the republic of indonesia (perma ri) has several functions. firstly, as a filler of legal vacuum, supplementing the lack of law and legal discovery, where the provisions of legislation are not or have not been regulated so that perma ri can be complementary to the laws and regulations. secondly, as law enforcement and legal source because perma ri is a concretization of judicial practice with aim for legal certainty, justice and expediency (mulyadi 2014). perma ri number 4 of 2014 on guidelines for implementation of diversity in the child criminal justice system, was born to fulfill vacuum and law enforcement in the context of the practice of organizing the regulatory system (mulyadi 2014). furthermore, substantially perma ri number 4 of 2014 consists of v (five) chapters regulating general provisions, diversion duties in courts, transitional provisions and closing provisions. basically, perma ri number 4 of 2014 serves to fill the void and law enforcement for the practice of governance and the system of legislation referring to the consideration of letter b of perma ri number 4 of 2014 stated that law number 11 of 2012 on system the child criminal court has not yet clearly set out the procedures and the stage of diversion. therefore, there are some things that have not been regulated in the sppa act and then regulated in perma no. 4 of 2014, as a function of fulfilling legal vacuum and law enforcement, which is described as follows: 1) pursuant to article 1 of the general provisions of the definition of deliberative deliberation as a consensus between the parties involving the child and the parent/guardian, the victim and/or parent/guardian, the social guidance counselor, the professional social worker, the community representative and other parties involved to reaching a diversified agreement through a restorative justice approach. the diversion facilitator is a judge appointed by the chief judge to handle the child's case. in addition, the provision of 'caucus' is a separate meeting between the facilitator of diversion with one of the parties known by the other party. a diversion deal is a consensus of the result of a diversity deliberation process that is set forth in the form of a document and signed by the parties involved in the diversionary deliberation, in which the day is a working day. 2) subject to the provisions of article 3 it is stipulated that: 79 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 “a child judge shall seek diversion in the case of a child charged with a criminal offense punishable with imprisonment under 7 (seven) years and shall also be charged with a criminal offense punishable by imprisonment of 7 (seven) years or more in the form of subsidiary, alternative, cumulative or combined indictments”. the provisions of article 3 perma, especially the sentence editorial, "a criminal offense punishable with imprisonment of 7 (seven) years or more in the form of subsidiary, alternative, cumulative or combined indictment". thus perma concerning the specifically specific versions of the sentence, "is punishable by imprisonment of 7 (seven) years or more", this substance is broader than the provision of article 7 paragraph (2) letter a of the sppa law because the diversion is made against, “the offense committed is threatened with imprisonment under 7 (seven) years”. 3) with this perma regulates the standard format of the letter of determination of deliberative deliberation meetings, the report of the event of either failed versions of the beginning or the unsuccessful version, the diversion agreement and the letter of appointment of the chairman of the district court if the verdict succeeded in court. the format is contained in attachment perma no. 4 of 2014 on guidelines for implementation of diversion in the criminal justice system of children. diversity in perspective of perma ri number 4 of 2014 as a function of fulfilling legal vacuum, law enforcement for justice and expediency article 3 perma has expanded and flexed the diversion provisions that are normatively regulated in sppa law and accommodate in cases where the parties in the child's case agree to diversify against a child subject to a criminal offense of 7 (seven) years or more so that it is possible to be diverted under the terms, “the child is charged in the form of a subsidiary, alternate, cumulative or combined indictment”, although on the other hand the provisions of article 7 paragraph (2) the sppa act is not possible. diversion and restorative justice formulation policy in the perspectives of government regulation number 65 of 2015 on guidelines for the implementation of diversity and handling of children under twelve government regulation of the republic of indonesia number 65 of 2015 on guidelines for the implementation of diversity and handling of children under 12 (twelve) years, was born as a technical guidance of law enforcement officers in the implementation of the diversion process previously set in law number 11 of 2012 on system child criminal court. subsequently, the government regulation of the republic of indonesia 80 http://journal.unnes.ac.id/sju/index.php/jils wikan sinatrio jils 4 (1) may 2019, 73-88 number 65 of 2015 consists of vii (seven) chapter regulates general provisions, guidelines for the implementation of diversity process, procedures and coordination of diversity implementation, handling of 12years old child, funding, transitional provisions and closing terms. in essence, the government regulation of the republic of indonesia number 65 of 2015 serves to provide technical guidance on the implementation of the diversion process in the regulatory system which refers to the consideration to implement the provisions of article 15 and article 21 paragraph (6) of law number 11 of 2012 regarding the system child criminal court, it is necessary to stipulate a government regulation on guidelines for the implementation of diversity and handling of children under 12 (twelve) years. so from the provisions of government regulation no. 65 of 2015 it can be seen that the implementation guidelines and coordination procedures between law enforcement agencies such as police, attorney and courts as implementers in the implementation of diversion is clearly described in government regulation no. 65 of 2015. whereas the provisions on terms and procedures for the diversion and handling of cases of children not yet 12 (twelve) years in line with law number 11 of 2012 on the criminal justice system of the child. implementation of the concept of diversion and restorative justice approaches in handling children’s cases in conflict with the law at pati district court diversion shall be strived at the level of investigation, prosecution and examination of children's cases in the district court. implementation of the concept of diversion in the examination of cases of children in the district court in the form of settlement of cases outside the juvenile criminal justice system or non-litigation path in the form of dispute resolution in the family (restorative justice). this provision is provided for in article 7, article 14 and article 52 of the sppa law which may be detailed, the diversion shall be made at the examination level in the ordinary children's court in practice carried out through the following steps: 1) upon receipt of the case file from the public prosecutor, the district court chairman shall determine the child's judge or the judge of the child to handle the child's case no later than 3 (three) days after receiving the file of the case. 2) the judge shall endeavor to be a maximum of 7 (seven) days after being stipulated by the president of the district court. in judicial practice, a diverging judge is referred to as a diversion facilitator of a child judge appointed by the chief judge to handle the child's case. diversion is conducted through deliberation by involving related parties and done to reach the diversion agreement through restorative justice approach. 81 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 3) if the perpetrator or the victim agrees to be diverted then the child's judge, social guardian, and professional social worker begin the process of conversion of the case by involving the relevant parties. the diversion process shall be carried out no later than 30 (thirty) days, beginning with the establishment of a judge of the child or judge of the child on the determination of the day of diversion and the diversion process may be carried out in the mediation court of the district court after it has been made of the proceedings of the diversion process, either successful or failing as the format of the minutes is attached in attachment i, ii, iii and iv of perma number 4 of 2014. 4) if the successful conversion where the parties reach an agreement, then the agreement is set out in the form of a diversion agreement. the result of the diversion agreement and the news of the diversion shall be submitted to the president of the district court for determination. the chief justice shall issue a determination within a period of no more than 3 (three) days from the receipt of the diversion agreement. such determination shall be submitted to the child counselor and the judge of the child who handles the case within a maximum of 3 (three) days since it is stipulated by the president of the district court. subsequently, upon receipt of the determination of the head of the district court on the diversion agreement, the child's judge or the judge of the child issues the stipulation of a hearing and shall also contain the editorial "ordering the accused to be removed from detention", against the child who is in custody of the case. 5) if the failed versions of the case proceed to the trial stage. furthermore, the judge continues the proceeding in accordance with the trial procedure for the child. in the pati district court from 2014 until february 2016 there were 638 criminal cases entered. it consists of 275 cases in 2014, 309 cases in 2015 and 54 cases up to february 2016. of the 638 criminal cases within 2014 to february 2016 there are 17 cases of conflicted children with laws handled by the pati district court. from these data shows that a very prominent increase occurred in 2015 with 13 cases, which previously in 2014 only amounted to 3, whereas in the year 2016 until february there were only 2 cases of children in conflict with the law. based on the table in the period of two years 2 months starting from 2014 to february 2016 there are 17 (seventeen) types of crimes committed by children, namely extortion and assault as much as 1 (one) case, beating 2 (two) cases, theft as many as 5 (five) cases and wanton as many as 9 (nine) cases. so from the data there is the fact that the case of children in conflict with the law handled pati district court at most is a case of immorality. from these data it can be concluded that the number of children in conflict with law from 2014 to february 2016 amounted to 17 (seventeen) cases of children. however, of the 17 (seventeen) cases undergoing a diversion there are only 2 (two) cases, one case in 2015 and one case at the beginning of 82 http://journal.unnes.ac.id/sju/index.php/jils wikan sinatrio jils 4 (1) may 2019, 73-88 2016. from the fact that there are not all cases of children in conflict with the law in the pati district court through a process of diversion. according to the interview with etri widayanti, as one of the judges of the facilitator diversion in pati district court, it is because children who commit criminal acts in the jurisdiction of pati district court on average are threatened with high criminal penalty that is above 7 (seven) years. in addition, the indictment of the public prosecutor of the children who was transferred to the pati district court on average contains charges with threats of 7 years or more. moreover, the judge in pati district court cannot apply alternative settlement procedure (non-litigation) in the form of diversion. the judge in conducting the examination of the child in court is a funnel of the law if the sppa article 7 paragraph (2) letters (a) and (b) clearly state that 'diversion is exercised in the event that a criminal offense is punishable by imprisonment under 7 seven) years and not a repeat of a crime. based on the aforementioned article, the diversion can only be done with a limitative indicator of a criminal penalty under 7 (seven) years. consequently, the consequences are criminal acts committed by a child threatened with 7 (seven) years or more, and the judge does not have the authority to undertake nonlitigation settlement efforts in the form of diversions due to the sound of the article in the event that the conditions of settlement through diversion and restorative justice are very clear. thus, judges find it difficult to pursue alternative solutions by way of diversion, although both parties either the perpetrator or the victim have a wish or consent that the case can be attempted for a diversified settlement (widayanti 2017). since law number 11 of 2012 on the juvenile justice system came into force on july 31, 2014 to date, there are 2 (two) children in conflict with the law at the pati district court pursuing the settlement process through diversion and resort-justice procedures. the first case is related to the criminal act of beatings, against the child charged with article 80 paragraph (1) of law no. 23 of 2002 in conjunction with article 55 paragraph (1) to 1 of the criminal code. the second case, also related to the criminal act of beatings, against the child was accused of first article 170 paragraph (1) of the second criminal code article 76 c jo article 80 paragraph (1) of law no. 35 year 2014 subsidair article 76 c jo article 80 paragraph (1) of law no. 35 of 2014 jo article 56 of the criminal code. therefore, the child who is in conflict with the law based on the relevant laws and regulations must be pursued the settlement procedure through the diversion by the judge of pati district court. and settlement efforts through diversion with the restorative justice approach have been made to both cases but none have succeeded in reaching a peace agreement through diversion. furthermore, the implementation of the concept is diversified according to the restorative justice paradigm. it is based on the same procedure diversion with forms of settlement efforts using several methods and approaches that reflect the paradigm of restorative justice in efforts to 83 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 solve cases of children in conflict with the law at the court of pati (widayanti 2017). the forms of settlement efforts offered by restorative justice based methods and approaches in pati district court are as follows: 1) mediation; 2) conciliation followed by reconciliation; 3) restitution; 4) the apology of the perpetrator; 5) regretful acts by perpetrators; 6) the perpetrators' accountability; 7) guarantees from the perpetrator's parents for the future to educate and supervise the child not to repeat his actions again; 8) recovery of the original condition of both victims and perpetrators; 9) service to the victim; 10) recovery of perpetrators through community elements, which may take the form of community education, social work or leave it to religiousbased educational institutions to restore the behavior of child offenders; 11) it is expected that the final outcome will be a consensus-based agreement approved by all parties involved in the diversion and restorative justice procedures. parties involved in the diversion process with the restorative justice approach at the pati district court: 1) victims and families of victims. the involvement of victims in the settlement of restorative justice is quite important. this is because during this time in the criminal justice system, the victim is not involved when the victim is a party directly involved in the conflict (the aggrieved party). in the deliberation the interests of the victim are important to be heard and are part of the decision to be taken. in addition, the victim's family needs to be involved because in general the core issue is from the family especially if the victim is a minor. 2) actors and families. the perpetrator's family is an absolute party because remembering the age of the immature perpetrator is also considered very important because the family will be part of the settlement agreement, such as in the case of compensation payments or the implementation of other compensation in accordance with the consensus agreement. 3) community representatives are important parties to represent the interests of the environment where the criminal incident occurred. the goal is that the interest of the public nature is expected to remain represented in decision-making. the criteria of local community leaders are village heads, village heads and other figures who have legitimacy as community representatives and have no interest in the cases faced. the pati district court in settling cases of children in conflict with the law has endeavored the procedure of diversion and restorative justice in accordance with the provisions of legislation for 2 (two) cases of children in conflict with the law at the pati district court. the settlement efforts by 84 http://journal.unnes.ac.id/sju/index.php/jils wikan sinatrio jils 4 (1) may 2019, 73-88 bringing together both parties of the family of the perpetrator and the victim's family with the model of settlement using the methods of mediation, conciliation and restitution simultaneously. thus the case of children in conflict with the law at the pati district court has been attempted to avoid the judicial process (litigation) and diverted outside the judicial process (nonlitigation) carried out through a diversion procedure with a restorative justicebased approach. the barriers & problems in the implementation of diversion according to the data of the research that has been discussed in the previous problem formulation shows that there are only 2 (two) diversion attempts made by the pati district court and 2 (two) cases that are attempted to diversion and even fail to meet an agreement. from the data, it is found an obstacle in implementing the concept of diversion and restorative justice in settling cases of children in conflict with the law in pati district court that is as follows: 1) low community understanding of diversified concepts and restorative justice approaches; 2) child criminal justice system; 3) the success of the diversion process and the restorative justice approach depends largely on the family and community on which the child is returned; 4) it is very difficult to prevent children from retributive justice punishment in the event of a very serious offense; 5) law enforcement apparatus of diversion and restorative justice implementation according to the interview to etri widayanti, as one of the judges of diversion facilitator at pati district court, the main obstacle in seeking diversion and restorative justice is located on the side of the victim or the family of the victim who does not accept the perpetrator's actions and wants revenge in the form of criminal the judge;s decision in the trial or the victim wants to make peace through the diversion channels provided that the offender is able to pay the claim for material damages high enough. to overcome obstacles in the implementation of diversion and restorative justice in the pati district court, the authors point to the efforts put forward by pranis (1998) that in order to provide an understanding of the course of the diversion process with the restorative justice approach, there are several steps to build community involvement in taking the initiative of restorative justice, such steps are: 1) training and information on restorative justice and models that can be applied in the community; 85 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 2) to provide education independently to the restorative justice implementing legal apparatus about the condition and condition of the community; 3) identify capable and influential leaders in their respective communities through information or records concerning such persons; 4) understand the role of community groups that enable them to work together; 5) explain to the public the purpose of implementing restorative justice clearly and openly to the public. the explanations conveyed are the importance of restorative justice, its implementation process, the benefits gained, and other important things of restorative justice; 6) embracing potential supporters in criminal justice and educating leaders about restorative justice; 7) good cooperation with community leaders to explore existing and growing needs, and to invite community participation in every program they undertake; 8) any recruitment of mediators shall be endeavored to involve community members; 9) continuing to exchange information with members of the community by accommodating their opinions, especially from components of community groups that are not always involved in making restorative justice decisions; 10) attempt to the maximum extent possible to involve every member of the community in any process, especially parties required in the process, such as victims, perpetrators of youth organizations, mosque organizations, or other organizations; 11) provide basic training on justice, restorative justice of conflict resolution and community environment development to staff of criminal justice system and community members and make reference of system and order of implementation. 12) describe the responsibilities of each party involved in implementing restorative justice to the community. so that necessary cooperation and good understanding between law enforcement agencies with the parties ie perpetrators, victims and families of perpetrators or victims of the concept of diversion and restorative justice. thus efforts to implement diversion and restorative justice in the settlement of children in conflict with the law not only focus on the perpetrators and victims only. the role of the community and law enforcement officers is instrumental in ensuring that perpetrators can be avoided from the retributive justice process. however, it changes to the nature of restorative justice (recovery), and achieves the ultimate goal of the child criminal justice system, which is solely for the best interests of the child. 86 http://journal.unnes.ac.id/sju/index.php/jils wikan sinatrio jils 4 (1) may 2019, 73-88 conclusion law number 11 of 2012 on child criminal justice system and its implementation rules have regulated the policy of the concept of diversion and restorative justice with the aim that children who commit crimes are no longer faced in the judicial process but through alternative settlement, that is by completion which is restorative justice. in fact the policy of sppa act is still not perfect because found several points of weakness that is as follows: 1. regarding the provisions of the diversion in article 7 paragraph (2) subparagraph a of the sppa act precludes the diversionary effort that can be made to a child in the event that a criminal offense committed is punishable by imprisonment of 7 (seven) years or more. this article does not accommodate the spirit of child protection where the basic philosophy of child protection in the crc set forth in the preamble is "the child needs special protection because of physical and mental inadequacy" so that the efforts of non-formal alternative settlement through diversion and restorative justice should be done as much as possible in the children's case and retributive justice retaliation should begin to be abandoned and replaced by the application of restorative justice to the best interests of the future and avoiding negative stigma against children in conflict with the law. 2. the existence of regulatory inequalities regarding the child's criteria or criteria can be attempted to diversify between the sppa act and the supreme court's perma. in this case perma supreme court provides extension of provisions on criterion of criminal threat of 7 years or more can be attempted to diversion if the child is indicted in the form of indictment subsidair, alternative, cumulative or combination (combination). implementation of the concept of diversion and restorative justice in efforts to resolve cases of children in conflict with the law at the pati district court has been seeking the diversion of child cases under the sppa act for diversion and restorative justice approaches in order to safeguard the interests and rights of the child. however, not all parties, especially from the victim or the victim's family, agree with the perpetrator or the family of the perpetrator and ultimately the victim or the victim’s family still insist that the child (perpetrator) be processed during the hearing in court and sanctioned by the judge. constraints that occur in the implementation of the concept of diversion and restorative justice in settling cases of children in conflict with the law in pati district court, namely: 1. lack of divergence and restorative justice approaches, especially by the victim or the victim's family. 87 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 2. diversion is considered a bargain place of peace that is measured only by the amount of material compensation but not the coaching and restoration of the original state according to the concept of restorative justice 3. lack of limited training and human resources in resolving conflicts and techniques facilitating or leading mediation in diversified execution with restorative justice approaches therefore, diversion and restorative justice efforts must be made against children in conflict with the law regardless of the severity of the criminal threats perpetrated by the child so that in the end there is no treatment of different settlement efforts in the handling of conflict resolution efforts with the child, especially in the level examination in the district court so as to achieve the goal of a good criminal justice system. in the implementation of the diversion will inevitably relate to the concept of restorative justice which emphasizes restoration of the child's case in conflict with the law so that the focus is not on retributive justice. references arifin, mokhammad donny. “model of implementation of juvenile criminal system to the criminal offender (educative perspective on institute for special development children lpka kutoarjo, central java, indonesia)”. journal of indonesian legal studies 3(02), 2018: 253-72.. google scholar crossref bouffard, jeff, cooper, maisha, and bergseth, kathleen. “the effectiveness of various restorative justice interventions on recidivism outcomes among juvenile offenders.” youth violence and juvenile justice 15(4), 2016: 465-480. google scholar crossref burfeind, james & bartusch, dawn jeglum. juvenile 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"criminal justice system of children: an overview restorative justice concept in indonesia and other countries." jurnal dinamika hukum 15(1), 2015: 73-81. google scholar crossref hirschi, travis. causes of delinquency. london: routledge, 2017. google scholar crossref maskur, muhammad azil. “perlindungan hukum terhadap anak nakal (juvenile delinquency) dalam proses acara pidana indonesia”. pandceta research law journal 7(2), 2012: 171-181. google scholar crossref marlina. peradilan pidana anak di di indonesia perkembangan konsep diversi dan restorative justice.bandung: pt refika aditama, 2009. google scholar may, jessica, osmond, kristina, and billick, stephen. “juvenile delinquency treatment and prevention: a literature review”. psychiatric quarterly 85(3), 2014: 295–301. google scholar crossref mulyadi, lilik. wajah sistem peradilan pidana anak indonesia. bandung: alumni, 2014. google scholar petrosino, anthony et.al. “scared straight’ and other juvenile awareness programs for preventing juvenile delinquency”. cochrane database of systematic reviews, 2013, issue 4. art. no.: cd002796. doi: 10.1002/14651858.cd002796.pub2. google scholar online pranis, kay. engaging the community in restorative justice. balance and restorative justice. florida: minnesota, 1998. google scholar shoemaker, donald j. juvenile delinquency. maryland: rowman & littlefield, 2017. google scholar online siegel, larry j. & welsh, brandon c. juvenile delinquency: theory, practice, and law. boston: cengage learning, 2014. google scholar online sudarto. hukum pidana 1. semarang: yayasan sudarto fakultas hukum universitas diponegoro, 2009. wahyudi, setya. “penegakan peradilan pidana anak dengan pendekatan hukum progresif dalam rangka perlindungan anak”. jurnal dinamika hukum 9(1), 2009: 29-39. google scholar crossref widayanti, etri. (2017, july 15). personal interview https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=hardjaloka%2c+loura.+%22criminal+justice+system+of+children%3a+an+overview+restorative+justice+concept+in+indonesia+and+other+countries.%22+jurnal+dinamika+hukum+15.1+%282015%29%3a+73-81.&btng= http://dx.doi.org/10.20884/1.jdh.2015.15.1.365 https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=hirschi%2c+travis.+causes+of+delinquency.+routledge%2c+2017.&btng= https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=hirschi%2c+travis.+causes+of+delinquency.+routledge%2c+2017.&btng= https://doi.org/10.4324/9781315081649 https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=muhammad+muhammad+azil.+%e2%80%9cperlindungan+hukum+terhadap+anak+nakal+%28juvenile+delinquency%29+dalam+proses+acara+pidana+indonesia&btng= https://doi.org/10.15294/pandecta.v7i2.2384 https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=peradilan+pidana+anak+di+di+indonesia+perkembangan+konsep+diversi+dan+restorative+justice&btng= https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=may%2c+jessica%2c+kristina+osmond%2c+and+stephen+billick.+%22juvenile+delinquency+treatment+and+prevention%3a+a+literature+review.%22+psychiatric+quarterly+85.3+%282014%29%3a+295-301.&btng= https://doi.org/10.1007/s11126-014-9296-4 https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=wajah+sistem+peradilan+pidana+anak+indonesia&btng= https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=petrosino%2c+a.%2c+turpin%e2%80%90petrosino%2c+c.%2c+hollis%e2%80%90peel%2c+m.+e.%2c+%26+lavenberg%2c+j.+g.+%282013%29.+%27scared+straight%27and+other+juvenile+awareness+programs+for+preventing+juvenile+delinquency.+cochrane+database+of+systematic+reviews%2c+%284%29.&btng= https://vc.bridgew.edu/cgi/viewcontent.cgi?referer=https://scholar.google.co.id/&httpsredir=1&article=1032&context=crim_fac https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=engaging+the+community+in+restorative+justice.+balance+and+restorative+justice&btng= https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=shoemaker%2c+donald+j.+juvenile+delinquency.+rowman+%26+littlefield%2c+2017.&btng= https://books.google.co.id/books?hl=id&lr=&id=khqmdgaaqbaj&oi=fnd&pg=pp1&dq=juvenile+delinquency&ots=1qr1fzq7xf&sig=6qaddp8o7udeieijsb0abr7poyu&redir_esc=y#v=onepage&q=juvenile%20delinquency&f=false https://scholar.google.co.id/scholar?hl=id&as_sdt=0%2c5&q=siegel%2c+l.+j.%2c+%26+welsh%2c+b.+c.+%282014%29.+juvenile+delinquency%3a+theory%2c+practice%2c+and+law.+cengage+learning.&btng= https://books.google.co.id/books?hl=id&lr=&id=suebcgaaqbaj&oi=fnd&pg=pt6&dq=juvenile+delinquency&ots=wlalxs6gq-&sig=w-ubwlwezkb7sgbf6b8v2s9bsli&redir_esc=y#v=onepage&q=juvenile%20delinquency&f=false https://scholar.google.co.id/scholar?q=setya+wahyudi+penegakan+peradilan+pidana+anak+dengan+pendekatan+hukum+progresif+dalam+rangka+perlindungan+anak&hl=id&as_sdt=0%2c5&as_ylo=&as_yhi= http://dx.doi.org/10.20884/1.jdh.2009.9.1.52 105 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 volume 1 issue 01 november 2016 jils 1 (1) 2016, pp. 105-114 issn 2548-1584 e-issn 2548-1592 book review indonesian’s pillars democracy: how this country survives ayon diniyanto ayon diniyanto legal advocacy and analysis center, semarang, indonesia  ayondiniyanto24@gmail.com introduction book written by jimly ashiddiqieone of the legal scholar which concern in constitutional law “hukum tata negara dan pilar-pilar demokrasi”, constitutional law and pillars democracy, become one of the important books concerning to constitutional law as well as the whole perspective how indonesia reformulate this type of country. the book actually quite same but it is little bit different with another books. jimly, through his book tried to examine how indonesia establish their rules and regulation post local autonomy era. starting with the establishment of law and law makingprocess and ending with conflict in the context of freedom of expression in people democracy, this book expressed the comprehensive perspective about democracy and it process in the framework of legal perspective. mailto:ayondiniyanto24@gmail.com 106 ayon diniyanto jils i (1) november 2016, 105-144 law making process and gender of indonesian parliamentary system the book constitutional law and pillars of democracy written by jimly asshiddiqie in chapter i provided some ideas of jimly concerning to the constitutional law and local autonomy. first important thing that discussed by jimly namely the establishment of law and it making process. jimly limits the chapter with the limitation of legal definition into four groups: (1) the state’s law; (2) the people’s law; (3) the professor’s law; and (4) the professional’s law. the state’s law group composed of three institutions such as government, parliament and the courts. group of the people’s law there are various institutions including indigenous institutions, legal institutions and in practice, as well as legal research institutions and universities. then related to the process of law in accordance with the constitution of 1945, there are five processes including (1) establishment of the laws; (2) establishment of legal jurisprudence; (3) the formation of customary law; (4) establishment of ‘volunteer’ law ; and (5) establishment of legal studies doctrine. secondly, jimly discussed oh his book, about parliamentary structure as well as bicameral system. jimly declared that at the previous time, indonesia adopted monokameral on parliamentary system. majelis permusyawaratan rakyat or mpr at the time become the highest organ or institution that has unlimited powers, so that the assembly can form the constitution and the state policy as well as oversees the parliament and the president. indonesia officially adopted parliamentary structures bicameral or twochamber system after indonesia became a union under the constitution of ris on 1949. amendment of constitution 1945 has brought a fundamental change that is by the alternation of power distribution be separation of power. amendment of constitution 1945 has also given the widest local autonomy to the regional. amendment of constitution 1945 initiated the election of president and vice president directly as well as the establishment of the dewan perwakilan daerah or dpd. after their amendment of constitution 1945 parliamentary system in indonesia according to jimly asshiddiqie consists of two rooms or bicameral that is dpr and dpd. the mpr into the parliament house that is the same position with the dpr and dpd. so later if there is a third amendment to the constitution 1945 jimly asshiddiqie suggested that the legislative powers of the assembly carried be composed of dpr and dpd. asshiddiqie also suggested that dpd members are elected directly by the pure district system is winner takes all. the legislature is elected using proportional system are also useful for strengthening the institutional political parties. for areas not using bicameral except certain areas that are set to be the special autonomous regions. 107 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 related to the controlling functions of dpr and dpd, generally consist of legislating, controlling, and budgeting functions. therefore, dpr and dpd should have a same and equal whether in functions, rights, or duties, but for the appointment of public officials, only dpr could execute it. also with asking for accountability and responsibility from the government (impeachment) should be made by the parliament, while the council will determine the verdict on mpr. then specialized to ensure the protection of rights and social wealth of the imposition by the state, whose main task handed over to dpd. as for the legislative function, dpr and dpd can make laws as well as the president to submit a bill. to create the checks and balances between the dpr, dpd and the president must mutually agree that laws can be made and not disputed who has the task of legislation. the third section of chapter i discusses the shifts in legislative and executive powers. the shift of power from one government to the parliament because of the aspirations of the people who want to liberate themselves from the yoke of feudal kings and aristocrats. the shift from the parliament to the government many countries in the world such as turkey, england, italy, and indonesia in its constitution authorizes the government or the executive to join together to make laws or legislative parliament. actually, the parliament has the authority to change the bill that is mostly made by the government, to develop wisdom openly debate and control of government and state spending. so that the roots of government dominance over parliament caused by various phenomena. the phenomenon causes a shift of power from parliament to the government during the 20th century include (1) the phenomenon of the welfare state; (2) the phenomenon of conflicts and wars between countries; (3) the development of the party system and the number of political parties; (4) the complexity of the development of the tasks of government. forward tendency towards and in the 21 st century, liberalism and individualism leads to new, along with the demands of increased autonomy, besides it also develops people’s empower and civil society. political parties will also affect the role of parliament as a result of the political process at the community level. furthermore, the executive-legislative power shift in indonesia can be seen from the dynamics that have occurred. shifting dynamics of the parliament to the government and then shifted again from the government to parliament has been going on for 50 years since independence. the shift from the parliament to the government can be seen during the administration of president soekarno which during that time the role and the powers of government to grow larger and stronger over time. the process of power shift that goes from the new government to parliament actually occurs in the transition to the era of reform. the fourth section of chapter i discussed the critical analysis regarding first and second amendment of the constitution of 1945. jimly asshiddiqie discuss about civility and the constitution, to need amendment the constitution 1945. amendment of the constitution of 1945 today, and 108 ayon diniyanto jils i (1) november 2016, 105-144 proposed solution. civility and the constitution discussed the principles of citizenship and nationality as well as the constitution and civil religion. amendment of the constitution discussed the amendment system: (1) amendment made in accordance with the procedure set out by the constitution it or do not based on the provisions of the constitution; (2) amendment can be made through the update script, replacing the old texts with new manuscript, and through additional scripts. besides the amendment, this part also described about the procedure and mechanism of amendment, legal form amendment and substance of the amendment. this section also discusses the necessity of the constitution of 1945 to be amended. the constitution of 1945 which was passed on august 18, 1945 according to the constitution, soekarno lightning or as the constitution temporary. therefore, in the journey of the constitution of 1945have not been applied consistently pure and rulers. so a lot of abuse and interpretation interpreted freely by the ruler is in power at the time. for the constitution of 1945 needs to be changed in order to overcome the transience of the constitution of 1945. the material needs to be changed as institutional structure, the concept of rule of law, and accountability of the president. changes related to 1945 today bore some formal criticism (criticism procedural) of the 1945 changes are related to engineering changes through script changes and problems explanations of the 1945 constitution mechanical changes through script changes the constitution means that good always determine their own procedures change for him. related explanation after amendment the constitution of 1945 ratified explanation need not be included anymore. but if it did not include details status 1945 then changes into a new constitution not change the constitution of 1945. the criticism related material (criticism substance) which consists of the main ideas of the constitution, discussion and ratification of the bill, the involvement of parliament in the acceptance of foreign ambassadors, the determination of state borders, formulation of human rights, local governance and the elimination of de-concentration, testing materials law and completion disputed state administration, the form and the hierarchy of legislation (outlined in tap mpr), executive agency which is independent (outlined in tap mpr), systematics constitution, and so forth. therefore the proposed solutions in the form of (1) the middle way already cope with the preparation of the script of the constitution; (2) systematic content of the constitution; (3) designing procedures and discussion; (4) public participation and the legitimacy of the constitution; and (5) new systematics. chapter i of the fifth section discusses related presidentialism versus parliamenterism. there are four models of government systems in the world today is the british model with a parliamentary system, the american model of union with a presidential system, the french model with a mixed or hybrid system, and the swiss model is commonly called the collegial system. indonesia in journey have conducted experiments in the history of the application of the system of government. less than three months after the 109 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 1945 enacted on august 18, 1945 indonesia officially established a parliamentary cabinet. parliamentary system of government practiced from 1945 to 1959. from 1959 to 1965, indonesia adopted a mixed system based on the constitution of 1945 go to new order then can the constitution be applied purely and consistently makes the power that last up to 32 years which led to the reform. this means that the parliamentary system has failed and the mixture is applied in indonesia. indonesia needs to implement a pure presidential system. but indonesia is less suited to use with a multi-party presidential system. it is therefore necessary arrangements so that the party can be narrowed down by itself without any restrictions and limitations. likewise with presidentialism with a two-party system there is a weakness in their tendency to dual legitimacy or a government divided between the president and parliament. to cover up the shortcomings of the presidential system, it is recommended (1) the presidential elections conducted in two stages; (2) political parties possible cooperation in nominating the president and vice president before the election campaigns; (3) the president and vice president who determines the cabinet personnel; (4) the president may at impeachment for any violation of the law (criminal) relating to individual responsibility; and (5) government responsibility is individual. the sixth section discusses the authority of ministers to regulate. asshiddiqie suggested that should immediately prepare a specific law concerning to the types of laws and regulation legislations. in it must be provided provisions on the form of regulation as central regulation on the lowest level. recently the seventh section discusses the political and constitutional economics in the study of constitutional law. constitutional law has an important role in structuring social life and on the basis of the system referred to under the constitution. liberal democratic system states that every human being is responsible for and to himself. this is in line with the modern constitution that affect the constitution in western countries. various constitutional text in western countries the social and economic arrangement are not included in the constitution because it is not a state activity. but in the countries of eastern europe to include social and economic order explicitly stated in the constitution. the worldview of the countries of eastern europe and socialist countries which include economic aspects as a reaction to western europe who think that sovereignty is only political. actually, the concept of sovereignty includes political and economic dimensions. relations with the sovereignty of the people which must be mastered by the people not only political aspects of the life of the state, but also of economic resources. understanding that has led to the conception of economic and political democracy today. therefore, within the scope of the study constitutional law, then not only discuss the basics of the political arrangements of the institutions of the country, but also social and economic structuring idealized in a community covered by the study material that modern constitutional law. 110 ayon diniyanto jils i (1) november 2016, 105-144 media and the state: how media affacted the indonesian’s pillars democracy chapter ii discussed about the future of legal thought in media and information technology era. the first part of chapter ii discusses the development of information technology and its implications for law and government. the development of information technology and often responded slowly by poor countries and developing country. unless the country’s leaders have committed to respond quickly. even rich countries because of the commitment the leader is not there then the response to the developments in technology and information is also sluggish. the development of technology and information also have interaction with the world of law. including those relating to the administration of justice. relation to the administration of the law there are three types of legal decisions that got the attention that arrangement, the determination of the administration, and the judge’s decision. in the future there will be symptoms of hyper-regulation and the need for e-law. therefore, it needs infrastructure and substructure arrangement of legal information. the second section discusses the future of the law in the era of information technology: the need for a computerized information system of state administration and government. the longer a legal product into hyper regulation so that people become hyper regulation. then it is expected to handle information technology hyper regulation symptoms. countries should be able to take advantage of information technology to manage the symptoms hyper regulation namely through national and governmental institutions such as the board of representatives, the president and the governing council, justice agencies, and other institutions. in the future there will be a paradigm shift in the law. the world is complex and complicated law would face a fundamental change as one of the information needed by the community. the third section discusses the need for the regulation and control of dynamic development of telematics. so far, legislation regulating the telematics still limited when compared to the telematics very broad limits. for that adjustments should be related to telematics and also in the form of an official body that handles telematics. when compared with some countries like jordan that has the telecommunications regulatory commission (trc), south africa which has satra institutions, and canada linking such institutions with parliament. furthermore, regarding authority organize and responsibility for implementation, with the actual separation of the executive and legislative powers can actually be used as a basic consideration that the existence of independent institutions in the field of telecommunications which is also intended to regulate not associated with the government, but the house of representatives. we recommend a lot of commissions and independent institution fostering moved from the realm of government into the realm of parliament. 111 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 human rights in ueforia of democracy chapter iii constitutional law and pillars of democracy book written by asshiddiqie entitled flake thinking about the individual, human rights and citizenship. the first part of chapter iii discusses the conceptual and procedural dimensions of today's promotion of human rights (human rights progress towards understanding the fourth generation). this section discusses the human rights in the information age, historical determinism and cultural elements, and four generations of development of human rights. related to human rights in today's information age, the need to be set so that information is considered as the heritage of humanity that is free and is the right of every nation and everyone's right to know is not controlled by a handful of people. human rights dimension of the future will be developed rapidly along with the development of information technology. information lately been a source of strength. so whoever controls the information then he will have the power. the president has the supreme authority in the kind of information the government’s policy. president many master the information needed to support the system of power in the life of the state with a presidential system. if the government take action that people harm connection with infringement of the same information then it is in violation of human rights in the conventional sense. elements of historical and cultural determinism discuss problems related to the implementation of human rights in the field. in indonesia the concept of human rights is acceptable but implementation on the ground is different from practice practices that have been implemented in countries that have advanced human rights protection. the problem relates to the dimensions of the historical and cultural deterministic or determine the pattern comprehension and implementation of human rights principles everywhere. then associated fourth generation of human rights developments. the first generation is thinking about the conception of human rights that has long progress in the discourse of scientists since the era enlightenment rose to international legal documents official. the second generation, embrace the concept of human rights that guarantee to pursue the fulfilment of economic, social, and cultural, including the right to education, the right to determine their political status, the right to enjoy variety of scientific discoveries, and so forth. the third generation, led to a new conception of human rights that include an understanding of the right to development. the fourth generation declared that human rights issues not quite simply understood in the context of power relationships vertically, but also horizontally, between communities, between people or community groups, and even between one groups of people in a country with a group of people in other countries. 112 ayon diniyanto jils i (1) november 2016, 105-144 the second part of chapter iii discusses the citizens and citizenship of the republic of indonesia. this section consists of two topics, namely the nationality of the “chinese” descent and reform citizenship laws. regarding the nationality of chinese descent, chinese descent settle down for generations in indonesia since the reform era has managed to fight for is no longer referred to as the chinese people, but called the chinese people. peak presidential instruction no. 26 on the cessation of use terms natives and non-natives who makes the legal status and the status of chinese descent sociological groups in indonesian society is not undisputed. asshiddiqie suggest reforms its treatment of the descendants of “china” and other descendants of citizens do not have to be realized in the form of replacement of such terms. more important for the development is the adoption of a legal system that is non-discriminatory based on the principles of human rights, accompanied by law enforcement strict and indiscriminate and supported by the sincerity of all parties to seriously bring together the distance or the gap of social, economic and political wide open during this time. even if possible, descent citizens no longer need to call itself by its own ethnicity. the following discussion on the reform of citizenship laws where appropriate discriminatory provisions are appropriately completed. the original concept of national citizenship laws and concepts about how to obtain citizenship status which includes also the registration mechanism can be considered essential. then the basic assumptions that are discriminatory based on taste and entities completely omitted in the formulation of the law in the future in accordance with spirit promote human rights in today's era of reform. chapter iv, entitled flake democratic thought and reconciliation towards a new indonesia. the first section of this chapter discusses democracy and nomocracy: a prerequisite to the new indonesia in which to realize the ideals of indonesia in the future build can there are three things that need to be discussed, namely democracy, nomocracy, and the new indonesia. the second part discusses about national reconciliation. the idea of national reconciliation is the way the indonesian nation to solve national problems. the establishment of a national truth and reconciliation commission as an extra-judicial body with the task of upholding the truth by revealing abuses of power and human rights violations in the past in accordance with the provisions of the laws and regulations in force, and implement reconciliation in the perspective of the mutual interest of the nation. the second part also discussed reconciliation, national integration and social integration. implementation of the national reconciliation agenda, needs to be implemented various measures, whether national, provincial, and district level to the village level. social integration and national reconciliation agenda can be developed starting both central and regional level with the approach of the legal and socio-legal. the following discussion on the second part of section iv discusses the conflicts and freedom in a pluralistic society. to manage the conflicts that 113 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 data of book author : prof. dr. jimly asshiddiqie, sh published year : 2005 title : hukum tata negara dan pilar-pilar demokrasi language : indonesia (bahasa) city published : jakarta publisher : konstitusi press isbn : 979-99139-o-x exist in indonesian society is required at least four elements in conflict-prone environments namely (1) normative reference; (2) the agent of mediation and resolution; (3) social support; and support from government facilities. 114 ayon diniyanto jils i (1) november 2016, 105-144 law adagium accipere quid ut justitiam focias non est team accipere quam exiorquere to accept anything as a reward for doing justice is rather estorting than accepting 43 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 volume 2 issue 01 may 2017 jils 2 (1) 2017, pp. 43-54 issn 2548-1584 e-issn 2548-1592 the application of sharia maqashid on the protection of the rights of minority of muslim rohingya in regional asean (indonesia-malaysia) melissa towadi 1 melissa towadi department of international law, faculty of law, universitas negeri gorontalo  mellisa.lsyifa@ymail.com article info abstract submitted on september 2016 approved on february 2017 published on may 2017 this study aims, first, to analyze the application of the principles of maqashid sharia as a principle of human rights protection against the rohingya muslim minority. second, assess the extent of regional efforts (asean) to protect the rohingya muslim minority is based on the principles of maqashid sharia. this study is normative juridical, i.e basic research study is conceived as legal norms or rules which applicable, both contained islamic law and international law. further, legal materials collected in the process were analyzed based approach to the law (statute approach) and qualitative approach. the results showed, first, principle of maqashid sharia are the fundamental principles that are in line with international human rights principles set forth in the universal declaration human rights of 1948, the asean charter and the international conventions that have been globally accepted. its application carries its own moral responsibility for the asean region, to encourage its member countries (particularly indonesia and malaysia) obligations responsibility to protect (r2p) to the ethnic rohingya. when referring to the asean charter alone, especially member states indonesia and malaysia will be very limited in giving aid directly to the territory of the rohingya, given in addition to avoiding any intervention factor that arise, as well as the government of myanmar has declared the anti-islamic rule in the territories of its constitution. this is the regional challenges, especially for indonesia and malaysia keywords: maqashid sharia, asean, human rights, minority of rohingya 1 i would like to express my thankfulness to state university of gorontalo, universitas negeri gorontalo, (ung), especially department of international law, faculty of law. mailto:mellisa.lsyifa@ymail.com 44 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang melissa towadi jils 2 (1) may 2017, 43-54 http://journal.unnes.ac.id/sju/index.php/jils as a member states that embraces the principles of islamic law once the state of the organization with myanmar. secondly, efforts should be made indonesia and malaysia are fulfilling rights rohingya people merely when they became refugees or asylum seeker in the country. the rights can be met as a complement of the principle maqashid sharia, among others: a) freedom of religion, the right to life and freedom from fear (maintenance of soul) in this case indonesia has established the integrated community shelter (ics) as a residence of rohingya refugees and build mosques or places worship for muslims rohingya named mosque arakan, b) fulfill the safety assurance, guarantee of human dignity (maintenance of breath), c) custody of ethnic or tribal, the right to marriage to the breeding (maintenance of descent), d) the right to education (maintenance sense), e) the right to receive a decent living by being given the opportunity to earn a living (maintenance of property). introduction human rights are a natural right. rights that everyone has and cannot be revoked. all countries and human beings should be able to accept human rights concepts, as their formulations have been perfected by adopting various diverse nationalities and religions. the current human rights events to attract the attention of the international community are related to human rights abuses against the rohingya muslim minority that occurred in myanmar. rohingya muslims are ethnic muslims living in myanmar. from the report of 2 various news has occurred rohingya massacre (which incidentally muslims) more than 6000 people who peaked in june 2012. this is a serious problem that must be faced by the myanmar government for these events are contrary to human rights, namely the right to life, freedom of religion and the right to security. not only that, the rohingya muslim ethnicity is not recognized as a citizen of myanmar because according to the myanmar citizenship act of 1982 set out 3 categories of citizens, and of those 3 categories none of the categories can be applied to rohingya. not even admitted this ethnicity, because they are physically different. so since 1982 rohingya is not entitled to obtain a ktp (citizenship identity card, kartu tanda penduduk, ktp) or passport of myanmar. judging from these facts the urgent main concerns are the citizenship rights of rohingyas as the contents of un resolution submitted by un secretary-general ban ki moon that the rights of citizenship and rights that 2 media online pariaman, http://www.pariamantoday.com/2012/07/tragedi-memilukanmyanmar-dan.html, diakses tanggal 18 apri 2016 http://www.pariamantoday.com/2012/07/tragedi-memilukan-myanmar-dan.html http://www.pariamantoday.com/2012/07/tragedi-memilukan-myanmar-dan.html 45 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 have been violated against the rohingyas are a guaranteed human right and protected international law. 3 departing from human rights violations that appear to be “deliberate” by the burmese government, which has great implications for international and regional security (asean) is that the ethnic who are victims of human rights violations rohingya is a religious and faithful ethnic group. the problem of severe discrimination against the rohingya people who are muslims is very vulnerable. myanmar external parties, especially countries whose muslim majority would never allow this to take place continuously. especially considering the geographical conditions of myanmar that neighboring islamic countries such as bangladesh, malaysia and indonesia. therefore attention is not only directed to the internal conditions of the government of myanmar but will always pay attention to the existence and dignity of every people and even the state. due to the above the above the dignity of dignity because it is the enforcement responsibility legal or human personality which makes it capable to enjoy and use rights are followed by various obligations. it is mentioned in the qur'an, which reads: “and we have honored the children of adam, we carried them on land and ocean, we give them sustenance of good things and we preferred them to the advantages of the perfect on most creatures that we have created." (qs al-isra: 70). this verse indicates that god raised the human level. but there are still many we encounter practices of human rights violations that have implications for the intervention of one state to another. shari'ah islam itself has a purpose in line with the principles of human rights. the purpose of islamic law or maqashid al-syari'ah contains the five most basic rights which are the primary needs -dhoruriyat al-khoms-namely the right to life, the maintenance of reason, the guardianship of the offspring, the recognition of property rights and freedom of religion. the prophet himself in leading the people of medina has applied the principles of human rights. there are more similarities than differences between international, national human rights principles and human rights principles from an islamic perspective. therefore it is necessary to understand how the application of the principle objectives of islamic law (maqashid sharia) international human rights violations against the rohingya muslim minority. human rights in islam human rights in islam are not only recognized but fully protected as one of the pillars of islamic building. this principle is explicitly outlined in the qur'an, among others, in the letter al isra verse 70: “and indeed we have 3 suara jakarta, http://suarajakarta.co/news/hukum/akar-masalah-pelanggaran-hamrohingya-ada-di-myanmar/, access on 18 april 2016 http://suarajakarta.co/news/hukum/akar-masalah-pelanggaran-ham-rohingya-ada-di-myanmar/ http://suarajakarta.co/news/hukum/akar-masalah-pelanggaran-ham-rohingya-ada-di-myanmar/ 46 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang melissa towadi jils 2 (1) may 2017, 43-54 http://journal.unnes.ac.id/sju/index.php/jils honored the children of adam, we carried them on land and sea, we give them sustenance of good things and we favored them with a perfect excess over many we have created.” the verse expresses the glory of man in the text of the qur'an is called karamah (glory). mohammad hasbi ash shiddieqy divided karamah into three categories. first, the personal glory or karomah fardiyah; second, the glory of the community or karomah ijtimaiyah; and third, political glory or karomah siyasiyah. in the first category, man is protected both personally and in his property. in the second category “the status of human equality is fully guaranteed” and in the third category, islam fully guarantees the political rights of its people. on august 5, 1990, islamic countries incorporated in the organization of islamic conference (now the organization of islamic cooperation) produced a declaration of humanity according to islamic law based on the qur'an and as sunnah. this declaration is called the cairo declaration of 25 articles. it is stated in the declaration that all rights and freedoms are subject to shari’a or islamic law. these rights include: the right to life (surat al-isra: 33, al an’am: 151); the right to equality and status (surat al-baqarah: 286);freedom of expression (surah at taubah: 71); right of freedom of religion (surat al-baqarah: 286), property rights (surat al-baqarah: 188, annisa: 29); right to get justice (surat ash shura: 15); ha get justice (surat as shura: 15); right to get the basic needs of human life (qs adz dzariyat: 19); and the right to education (surah yunus: 101). maqashid shariah in relation to the principles of human rights shari’ah (shari’at) is literally the way to the source of water. in terms of religion (islam) shari'ah is the way of life of muslims. the shari’ah contains the stipulations of allah and the provisions of his messenger, whether in the form of prohibitions or in the form of commandments, covering all aspects of life and human life. 4 viewed from the aspect of jurisprudence, shari'ah is the basic law norms set by god, which must be followed by muslims based on faith related to morals, both in relation to god and with fellow human beings as well as with the natural surroundings. fiqh (fiqh) in language means understanding, in the sense of understanding or a deep understanding that requires the deployment of potential sense. the scholars of ushul fiqih defines fiqh as knowing the laws of islam that are amali (deeds). through their detailed arguments. they define jurisprudence as a collection of amaliah laws prescribed in islam. 5 4 muhammad daud ali, asas-asas hukum islam, jakarta: rajawali pers, 2001, p. 46 5 h.a. hafiz anshary, editor h.chuzaimah t. yanggo, problematika hukum islam kontemporer, jakarta: pustaka firdaus, 1994, p.8 47 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 in islamic legal terms the shari'a is distinguished from fiqh as follows: shari’ah is a rule that comes from revelation, while the conclusions of revelation become (in the form of) fiqh. shari'ah is fundamental with a wider scope, then fiqh is instrumental with limited scope of law governing human actions. shari'ah is the decree of allah and his messenger, because it is eternal. fiqh is a human work that is not eternal, it can change from time to time. shari'ah is only one and shows unity in islam, while fiqh shows the diversity of the visible streams called madzhab-madhhab. if the so called islamic shari’a law then fiqh is islamic jurisprudence. between shari’ah and fiqh there are differences, as well as showing the closeness of the relationship. 6 if we study the provisions of allah and the provisions of his messenger in the qur’an and saheeh hadiths, we immediately know the existence of the goal of islamic law. in general it can be formulated that the purpose of islamic law is the happiness of man in the world and in the hereafter, by taking the beneficial and preventing or rejecting the uncertain. in other words islamic law tujun is the benefit of human life. abu ishaq al-syatibi formulated five objectives of islamic law, which maintain the religious (hifzh al-din), keeping the soul (hifz al nafs), maintaining reasonable (hifzh al aql), maintain descent (hifzh al nasl) and treasure (hifzh al mal ). these five objectives of islamic law are called maqashid al-syari'ah. maqasid al-shari'ah is islamic law objectives that must be achieved. such a purpose can be traced in verses of the qur'an and hadiths of the prophet as the main source of law so that it can be formulated laworiented jurisprudence. this benefit can be captured by a person who is willing to earnestly use intellect. according to the scholars of usul fiqh term benefit is called maslahah mursalah. maslahah mursalah as a source of law in its implementation is still considered by the fuqaha. hanafy class schools and shafi'i schools do not regard it as a stand-alone source of law and put it into the category of qiyas. while imam maliki and imam hanbali argue that maslahah mursalah can be accepted and can be a source of islamic law, as long as meet the conditions specified. for essentially the existence of beneficiaries are in order to realize law purposes (maqasid al-shari'ah). although there is no direct nash that reinforces it. the maliky school of thought as the bearer of the flag of maslahah mursalah raised three reasons as follows: first, the practice of the companions who have used maslahah mursalah. as umar bin khattab did. he did not enforce the hand-cutting punishment of a poor thief in a famine. another example, the companions collect the qur'anic manuscripts on the absence of the command of the prophet. second, the beneficiaries in 6 muhammad daud ali, opcit, p. 49 48 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang melissa towadi jils 2 (1) may 2017, 43-54 http://journal.unnes.ac.id/sju/index.php/jils accordance with the maqasid al-shari'ah. thirdly, if maslahat is not done, then mukallaf will experience difficulties 7 (zahroh, 2001: 428 431) maqashid sharia rohingya minority rights protection the purpose of islamic law or sharia maqashid contains five of the most fundamental rights which are the primary needs (dhoruriyat alkhoms), namely the right to life, the maintenance of a reasonable, secure descent, the recognition of property rights (property), and religious freedom. prophet muhammad himself in leading the people of medina has applied the principles of human rights. there are more similarities than differences between international, national human rights principles and human rights principles from an islamic perspective. in relation to the protection of the rights of the rohingya muslim minority, the objectives of islamic law can be formulated as follows: al muhafazhah ala al-din (religious nurture) religion is something that every human must have in order to keep his dignity up. religion is a human need that must be met, because religion that can touch the human conscience. in embracing the religion, it is proper that every religion and even islam give protection to the followers of other religions to run their religion according to their belief. rohingya have been subjected to various pressures and discriminative treatments in the form of torture. the most fundamental in the event of human rights violations by myanmar is the discriminatory treatment conducted against ethnic rohingya who are all muslims. apart from the history of the political conflicts that have taken place since 1947, the rohingya ethnic group residing in the arakan region were treated unnecessarily because the government considered them to be very poor and uncivilized so they could not be classified as myanmar citizens. because of this, the myanmar government has even voiced anti-islamic government for its country. the peak in 2012 has been an abandonment, torture to expulsion by the myanmar military junta against the ethical. based on the declaration of human rights universal, 1948, declaration of universally recognized by all civilized countries of the world guarantee religious rights of every human being in the world, it is stated in article 2 8 , article 16 paragraph (1) 9 , article 18 10 , and article 26 paragraph (2) 11 . 7 m. abu zahrah, ushul fiqh, pustaka firdaus: jakarta, 2008, pp. 428-431 8 article 2 of the universal declaration in 1948: “everyone is entitled to all the rights and freedoms set forth in this declaration, with no exceptions of any kind, such as the 49 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 the 1948 universal declaration of human statement harmony with the principles of islamic law al muhafazhah purpose ala al-din in terms of human rights violations that restrict the rights of rohingya muslims in myanmar government. in the regional sphere, myanmar is one of the asean member countries, it did not uphold the purposes and principles of the asean 12 concern into maintain security and peace in the country namely the respect of fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice. yet in view of the lack of responsibility of myanmar, discrimination and human rights abuses against rohingya have bad implications for asean regional security, especially against asean-oriented asean countries, malaysia and indonesia. these human rights violations are very much at odds with any instrument including islamic law. until the year 2013 occurred bombing 13 in the monastery ekayana jakarta in indonesia and the biggest bombing occurred at erawan shrine bangkok, thailand as the implications arising for acts of human rights violations against ethnic rohingya. muhafazhah ala al-nafs (keeping the soul) it is the guarantee of salvation of the noble right to life. included in the general sense of this soul is the assurance of the safety of life, limbs and the guarantee of honor of humanity. of the latter include freedom of choice of professions, freedom of thought and expression, freedom of speech and freedom of choice of residence and prohibition of murder. undeniably, the rohigya ethnic is a very persecuted minority in myanmar. with a government widely accused of gross human rights violations, the rohingyas may be one of the most oppressed peoples. 14 rights noble life rohingya people taken away even no longer guarantee the safety of lives on them. in this case the equality status of the rohingya is fully guaranteed by the goal of islamic law muhafazhah ala al-nafs. the suffering drew a lot of attention from countries in the world, especially muslim majority countries. indonesia and malaysia as neighboring distinction as to race, color, sex, language, religion, political or other views, origins national or community proposals, property rights, birth or other positions.” 9 article 16 (1): “men and women who are older, with no limitation due to race, nationality or religion...” 10 article 18: "everyone shall have the right to freedom of thought, conscience and religion ..." 11 article 26 paragraph (2): "...... education should promote mutual understanding, tolerance and friendship among all nations, racial and religious groups, and should promote the activities of the united nations in the maintenance of peace." 12 article 2, point (i), asean principles. 13 satrier, “bom tempat ibadah”, http://m.kaskus.co.id/post/520712a8faca170c0a000003, accessed on 20 april 2016 14 human rights watch, “perilous plight? burma’s rohingya take to the seas”, 26 may 2009. http://m.kaskus.co.id/post/520712a8faca170c0a000003 50 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang melissa towadi jils 2 (1) may 2017, 43-54 http://journal.unnes.ac.id/sju/index.php/jils myanmar as well as myanmar's state-owned corporation at the regional level, is a country that does not stop monitoring the development of the rohingya situation and pay special attention.both countries pay special attention to the rohingyas based on the principle of humanity and the principles of islamic law applied in the country. at least the main reasons used as the basis for the muslims to treat well rohingya muslims is their solidarity which became one of the main principles of islam ie the principle of building brotherhood / fraternity. the persecution of rohingyas due to their racial and religious identities exacerbated by unfortunate events in burmese history is the main reason that has driven many rohingyas into the refugee camps of neighboring countries. those who escaped to malaysia and indonesia got serious help. in indonesia, the rohingya refugees are given the right to live a life as it should be men, children to school and the parents mingled with the citizen in an activity to earn a living, and even has built mosques arakan and shelter specifically rohingya refugees (integrated community shelter) in aceh. meanwhile, malaysia as well as indonesia received with the airy rohingya refugees in the country. not only that in malaysia there are several organizations formed as a form of support for the rohingya, among others: myanmar ethnic rohingyas human rights organizaion malaysia (merhrom), rohingya society in malaysia (rsm), burmese rohingya refugee community malaysia (brrcm), malaysia arakanese rohingya ulama council (aruc), malaysia rohingya social and welfare association pahang, malaysia burma refugee organization malaysia. muhafazhah al ala al 'aql (maintain intellect) al-muhafazhah ala al-'aql , that is assured the mind of the damage that causes the person concerned is not useful in the community. prevention efforts that are preventive by the shari'ah are actually aimed at improving the ability of the mind and keep of various things that harm. with a healthy mind man can develop science and technology and with it humans can manage and prosper the world as well as possible. the principle of equality or equality held in islam positions any ethnic or ethnic group in a secure space. the objective of islamic law which maintains the intellect of every human being in this case can be categorized as the right to get an education and get a decent living. asean’s regional obligations relating to the protection of serious human rights victims of rohingya are now more intensively undertaken by member states. the state is more proactive in the first handling of refugee acceptance. in international law every refugee is treated equally with other citizens of rights such as the right to education, the right to social welfare, the right to work. such rights are relevant to the purpose of muhafazhah al ala al‘aql about maintaining reasonable obligations. until now the obligation to 51 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 carry out this goal has been applied by both asean member countries, malaysia and indonesia, they can undertake education properly. muhafazhah al ala al-nasl (maintaining descendants) guarantee the sustainability of the human population to stay alive and grow healthy both physically and psychically. islam provides provisions in the qur'an and as-sunnah how to choose descent. islam also provides lessons on how to educate children and nurture families. related to the massacres that led to the destruction of myanmar's military junta against the rohingya minority is the most criticized act in the world, even they can be said to have done an ethnic cleansing within a country. internal conflict that originated from this long political history caused many civilians who became victims. destruction by means of this massacre and murder is a challenge to the objectives of islamic law, given the destruction is directed to ethnicity with the majority of rohingya muslims. in this regard, asean has formed a parliament specialized in dealing with issue and problem asean increasingly complex, the asean interparliamentary myanmar caucus (aipmc) and coupled with the organization on the islamic cooperation (oic) to raise the issue of violent anti-muslim in myanmar to the agency of the un human rights or the un human rights council (un hrc). currently asean member states incorporated as a council in the hrc include indonesia, malaysia, thailand and the philippines, have conducted various independent investigations of gross human rights violations in myanmar. such action is a regional contribution in the form of giving firmness against the myanmar government to prevent further human rights violations and restore the rights and freedoms of the minority rohingya. in this case maqashid sharia principles apply, asean is making significant efforts to be able to restore the rights of the rohingya ethnic descent is thus kept well maintained and there is no ethnic cleansing. muhafazhah al ala al-mal (maintain assets) treasure is a living jewelry for humans in general. life treasure and life. for that man is given the mandate as khalifah of allah swt, on earth to be able to manage this nature in accordance with its ability. actually according to islam everything is god's absolute property. but man is protected only to acquire property in lawful ways. therefore, there is a need for legal certainty in society, in order to ensure peace in the common life. in connection with this, in indonesia there are several nongovernmental organizations or foundations dedicated to refugee victims of human rights violations, one of which is the foundation of jembatan masa depan (jmd) .this foundation provides special assistance to rohingya refugees scattered in aceh with a program of assistance in the form of 52 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang melissa towadi jils 2 (1) may 2017, 43-54 http://journal.unnes.ac.id/sju/index.php/jils program creation of sustainable livelihoods, education programs, agriculture and community development in the east aceh region. 15 the effort is an attitude in achieving the islamic law’s goal that indonesia provides an opportunity for rohingya refugees residing in its territory to re-preserve their property in order to continue living properly. conclusions maqashid syariah principle consisting of the five objectives of islamic law, among others: al muhafazhah ala al-din (religious nurture), muhafazhah ala alnafs (soul guard), al muhafazhah ala al-'aql (maintaining reasonable), al muhafazhah ala al-nasl (the breeding), and al muhafazhah ala al-mal (maintaining the property) is a fundamental principle which is in line with international human rights principles set forth in the universal declaration of 1948, the asean charter and the international conventions which have been globally accepted. the application of sharia maqashid bring their own moral responsibility for asean, to encourage member states (especially indonesia and malaysia) obligation of responsibility to protect (r2p) to the ethnic rohingya. if referring to the asean charter only, member countries, especially indonesia and malaysia will be very limited in providing direct assistance to the rohingyas, as in addition to avoiding any intervention factors that arise, also because the government of myanmar has declared anti-islamic government within its constitutional territory. this is the regional challenges, especially for indonesia and malaysia as a member nation embracing the principles of islamic law once the state of the organization in myanmar. therefore efforts should be made indonesia and malaysia are fulfilling rights of the rohingya people merely when they became refugees (refugee) or asylum seeker in the country. the rights can be met as complementary of maqashid sharia principles, among others: 1. freedom of religion, the right to life and free from fear (maintenance person) in this case indonesia has established the integrated community shelter as a residence of rohingya refugees and build mosques or places of worship for muslims rohingya named mosque arakan. 2. meet safety assurance, secured the honor to humanity (maintenance breath) 3. the right to maintain ethnicity or ethnicity, the right of marriage to nurture offspring (the maintenance of offspring) 4. right to get education (sense maintenance) 5. the right to get a decent livelihood by being given a chance to earn a living (maintenance of property). 15 yayasan jembatan masa depan, “bantuan untuk pengungsi rohingya dan kesadaran publik”, http://jmd.or.id/rohingya/indonesian/, accessed on 20 april 2016. http://jmd.or.id/rohingya/indonesian/ 53 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 2 issue 01, 2017 as the recommendation in this article to answer the challenges facing the muslim minority rohingya is first, the urgency of the formation of an asean human rights tribunal to prosecute violations of international human rights implications. secondly, the greatest challenges facing the region, the need for firmness of asean to create a “special concessions” by all asean member states to all the demands of the rohingya especially religious rights as a consequence of strengthening regional unity in the international sphere. bibliography ali, muhammad daud, 2001. asas-asas hukum islam. jakarta: rajawali pers. ashary, h.a. hafiz, h. chuzaimah t. yanggo (ed). 1994. problematika hukum islam kontemporer. jakarta: pustaka firdaus. asean principles. human rights watch, “perilous plight? burma’s rohingya take to the seas”, 26 may2009. media online pariaman, http://www.pariamantoday.com/2012/07/tragedimemilukan-myanmar-dan.html, access on 18 apri 2016 satrier, “bom tempat ibadah”, http://m.kaskus.co.id/post/520712a8faca170c0a000003, accessed on 20 april 2016 suara jakarta, http://suarajakarta.co/news/hukum/akar-masalahpelanggaran-ham-rohingya-ada-di-myanmar/, access 18 april 2016 the universal declaration of 1948 yayasan jembatan masa depan, “bantuan untuk pengungsi rohingya dan kesadaran publik”, http://jmd.or.id/rohingya/indonesian/, accessed on 20 april 2016. zahrah, m. abu.2008.ushul fiqh. pustaka firdaus: jakarta http://www.pariamantoday.com/2012/07/tragedi-memilukan-myanmar-dan.html http://www.pariamantoday.com/2012/07/tragedi-memilukan-myanmar-dan.html http://m.kaskus.co.id/post/520712a8faca170c0a000003 http://suarajakarta.co/news/hukum/akar-masalah-pelanggaran-ham-rohingya-ada-di-myanmar/ http://suarajakarta.co/news/hukum/akar-masalah-pelanggaran-ham-rohingya-ada-di-myanmar/ http://jmd.or.id/rohingya/indonesian/ 54 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang melissa towadi jils 2 (1) may 2017, 43-54 http://journal.unnes.ac.id/sju/index.php/jils law adagium all men are equal before the law, without distictionsex, race, religion, and social status attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23910d402007 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf2391bec220b5 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare 1 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol i issue 01, 2016 volume1 issue 01 november 2016 jils 1 (1) 2016, pp. 1-2 issn 2548-1584 e-issn 2548-1592 editor in chief commentary finding some alternatives in indonesian legal development dani muhtada universitas negeri semarang (unnes) welcome to the journal of indonesian legal studies (jils). we are very pleased to publish this special edition, which is the first edition of the journal on the establishment of indonesian legal concept. normally, the first journal edition is about the basic theory of an issue. this edition is a special because we provide you with range articles on indonesian legal system and its development. the articles presented in this special issue make many important explorations and draw our attention to many important policy questions. one of the articles, written by riska alkadri, discusses the role of the regional representatives council (dpd, dewan perwakilan daerah). in the article, she explains about the existence and the authority of the dpd after the amendment of the indonesia’s constitution—that is, uud 1945. another article, written by hery abduh sasmito, highlights the role of the indonesia’s constitutional court (mk, mahkamah konstitusi). he indicates some decisions made by the constitutional court that might go beyond the limits of its authority. another view on the role of the constitutional court is provided by mochamad adib zain, wrote an article entitled politics of law on the state control of oil and gas in indonesia: gas liberalization and the hesitancy of constitutional court. i would like to express my gratitude to all authors who have submitted manuscript for this first journal edition, to: riska alkadri sh mh, muhammad ikhsan lubis sh mh, windi afdal sh mh, hery abduh sasmito sh mh, mochamad adib zain sh mh, putri anggia sh mh, and also to ayon diniyanto sh. 2 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang dani muhtada jils i (1) november 2016, 1-2 http://journal.unnes.ac.id/sju/index.php/jils my special thankfulness to editorial board team of journal of indonesian legal studies, postgraduate program, faculty of law universitas negeri semarang (unnes). i have to deliver very high expression of my gratitude to all edirotial boards of this first edition: professor sudijono sastroatmodjo sh msi (universitas negeri semarang), associate professor dr rodiyah spd sh msi (universitas negeri semarang), dr markus hage sh mh (university of nusa cendana kupang), dr nur rochaeti sh mhum (university of diponegoro, semarang), dr marcella elwina simanjuntak sh mhum (university of catholic soegijapranata, semarang), dr eric a jones (northern illinois university, usa), nehinpo kipgen (jindal global university, india), and dr philips j vermonte (center for strategic and international studies, jakarta) we wish you enjoy reading this very first issue of our journal! semarang, central java, indonesia dani muhtada mpa phd faculty of law, universitas negeri semarang journal of indonesian legal studies (jils) jils@mail.unnes.ac.id, dmuhtada@mail.unnes.ac.id mailto:jils@mail.unnes.ac.id mailto:dmuhtada@mail.unnes.ac.id attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23908a9e1fef • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare 47 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 volume 3 issue 01 may 2018 jils 3 (1) 2018, pp. 47-74 issn (print) 2548-1584 issn (online) 2548-1592 law enforcement against fraud and/or embezzlement (study of ksp intidana central java, indonesia) chandra andryanto chandra adryanto central java police department, kepolisian daerah jawa tengah  chandrardyanto@gmail.com table of contents introduction ………………………………………………………… 49 the investigation process against the perpetrator of fraud and/or embezzlement in ksp intidana in central java regional police ………….… 57 criminal law enforcement dimensions in the implementation of investigation against perpetrator of fraud and/or embezzlement of ksp intidana in central java’s regional police .…… 69 conclusion ……………………………………………………………. 73 bibliography …………………………………………………………. 74 * the paper actually developed from my research thesis at postgraduate program faculty of law universitas negeri semarang. i would like to deliver my thankfulness to professor sudijono satroatmodjo msi, dr indah sri utari sh mhum, dr ali masyhar sh mh, and mr dani muhtada mpa phd for their valuable comments and inputs. i also thank to central java police department and ksp intidana semarang for helping to get a lot of data and information. 48 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on december 2017 approved on february 2018 published on may 2018 crime recognized as a form of act which opposing the humanity’s moral, harming people, has asocial nature, and violating law also criminal law. because of that, crime must be eradicated, or must not let it continue until it evolves for the sake of discipline, security, and safety of people. one of the crimes that listed in criminal law (kuhp) is an act of fraud or embezzlement. the concept theory of this paper used the criminal sanctions which included: investigation, criminal act, the definition of scam or fraud, and the theories about cooperative. the paper indicated that the implementation of investigation process against perpetrator of fraud and/or embezzlement of intidana cooperative in central java’s regional police implemented after police report number: lp/b/426/xi/2015/jateng/reskrimum, november 5th, 2015 and inquiry warrant with number: 336b/xi/2015/dit reskrimum november 17th, 2015 also investigative warrant with number: 336a/xi/2015/ditreskrimum november 20th, 2015. the next step which the police took is to call and inspect victims or witnesses, arrest of suspect, detention of suspects and seizure of evidence. the investigation process by the investigator and the assistant investigator begins by contacting the complainant and completing the initial investigation administration then conducting the inspection of witnesses and the collection of evidence, determining and seeking, conducting the suspect's examination by arrest and detention of the suspect. the dimensions of criminal law enforcement in the conduct of investigation on the perpetrators of criminal acts of fraud and/or embezzlement of the intidana cooperative in central java’s regional police is to minimize the occurrence of similar criminal acts, especially for the perpetrators in fraud and embezzlement cases in the future can be charged with criminal liability of fraud and embezzlement. keywords: law enforcement; criminal act; scam; fraud. introduction law recognized that crime is a form of act which opposing the humanity’s moral, harming people, has asocial nature, and violating law also criminal law. because of that, crime must be eradicated, or must not let it continue until it evolves for the sake of discipline, security, and safety of people. one of how to cite (chicago manual style) adryanto, chandra. ―law enforcement againts fraud and/or embezzlement (study of ksp intidana central java, indonesia)‖, journal of indonesian legal studies (jils), 2018 3(1): 47-74 49 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 the crimes that listed in indonesian criminal law code (kuhp) 1 is an act of fraud or embezzlement. in plain words, as highlighted by gunadi (2001), fraud is intentional deception; since it includes lying, cheating, embezzlement, stealing and money laundering. embezzlement is the improper conversion of assets by persons, who has responsibility to take care the asset for his own purpose. while money laundering is a term used to describe the process of concealing and converting cash that has been earned illegally to another payment medium, there is also the intent of altering the appearance of the origin of funds from illegal to legal. fraud as well as embezzlement indeed has become one of crucial problems for indonesia, as described by gusnardi (2012) that is currently fraud in organizations especially in agencies government intensity increased, in accordance with the survey conducted by transparency international indonesia on 2015 which placed the political parties, legislative institutions and the director general of taxes as the most corrupt agency in indonesia. this requires the role of auditors and other regulatory agencies; the supreme audit agency (bpk) and the financial and development supervisory board (bpkp) to audit the indications of objective and independent fraud, so that corruption eradication works and the intensity decreases. many corporate organizations have no attempt to deal with fraud with a proactive approach. when fraud occurs within an organization it has to face a dilemma. in the case of alleged fraud, many organizations generally resolve it internally without being published. the case is then closed and the problem is considered complete. even dwiputrianti (2009) highlighted that corruption as well as fraud recognized as the behavior of individuals who use authority and position to derive personal gain, and/or harm the public and the public interest. the practice of accounting fraud—fraud and embezzlement—can arise in various forms, and according to putra (2010) that fraud is divided into four classes based on recording, frequency, consipration and uniqueness. the judiciary in indonesia has law enforcement tools including courts, attorney and police. as part of the state’s law enforcement tool, the indonesian national police is in charge of maintaining the country’s security. one form of police’s action to cope with the criminal act of fraud and/or embezzlement is by having an investigation. ―according to the criminal procedure law, general investigations can be examined as: investigation, arrest, detention and prosecution.‖ if the investigator has completed the investigation, the investigator shall immediately submit the case’s file to the prosecutor and if within 14 days the prosecutor does not return the file, then the investigation will be considered completed and ready to be processed for the court. 1 hereinafter called as kuhp, kitab undang-undang hukum pidana 50 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils investigation is a step to determine a truth, and that truth will be used as a base for decision by the judge who executes a rule of criminal law. investigation is a series of investigative actions based on the way that already prescribed in the criminal law to seek and collect evidence and to find the suspect. tactic and strategy in the investigation process are one of the most important elements in the investigation. it is considered one because many perpetrators of criminal acts committed a crime neatly, even often occurs a case when the perpetrator is the one who report the crime. the perpetrator of a crime who pretending to be the reporter of a criminal act, of course will make the investigator having a hard time to find the real perpetrator of the criminal act, because the investigator will conduct an investigation on some persons outside the reporting party. in the life of human society cannot be separated from the rules that have been established in the laws, if all communities obey it then they will be safe, peaceful, and prosperous in life. however, the reality is not so easy that the community can obey the rules because in reality the community and even law enforcers are not a few who being a perpetrator of criminal acts. law always follows and attaches to socialized human. before the law exists, there are various kinds of norms that directly or indirectly can both influence the behavior and actions of people in the colony in the social order. the most sensitive norms in people's lives are customary norms, religious norms, and moral norms, whereas legal norms arise not from society but derive from a state which is mandatory to be obeyed by every society in it. the norms above that highlighted many roles to the rule of law in a country. one of the roles of the law has a function: ―discipline and organize social interaction in society and solve problems that arise‖. with regard to the function of law in the development of society, soeroso (2005: 53) argues that the legal functions consist of: 1) as a means of governing public relations. law as the norm is a clue to life (levensvoorschriften). man in society, the law shows what is good and what is not. the law also gives guidance on what to do and what not to, so that everything can go orderly and orderly. 2) as a means of bringing about social justice and inner self. a. the law has the character of governing and forbidding. b. law has the nature of coercion. c. the law has physical and psychological binding power. 3) as a means of driving development. the binding and enforcing power of the law can be used or utilized to drive development. here the law is used as a tool to bring people towards the more advanced. 4) as a critical function. dr. soedjono dirdjosisworo, sh (in soeroso 2005), said: ―nowadays there is a growing view that the law has a critical function, namely the 51 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 legal power does not merely supervise the apparatus of supervision on the government apparatus but the apparatus law enforcers included‖. society is basically a collection of people who live together with basic bonds that can be a common nationality, territorial, kinship, common purpose, or emotional attachment. in society always there will always be the law, as the classical adagium mentions that ubi societas ibi ius (where there is society, there is law). the society that establishes its own law and is itself willing to obey the law that is what is called the legal community. the law is established by the legal community itself. this means that the law comes from the thoughts, desires, and feelings about what is considered right and just according to the community itself. the law is the result of a process that is internal and autonomous silently (silently operating) in the community. this process is rooted in a society based on beliefs and beliefs, as well as the awareness of the people concerned. in reality no legal society can work effectively, if its laws are not obeyed by the society itself with its consciousness. the legal community is so attached to the cultural concepts of society that it contains the cultural wisdom and cultural knowledge that is indispensable to the people concerned, so it is not necessarily applicable to other communities. according to erwin and busroh (2012) the so-called legal community is ―a society that establishes its own law and is itself willing to obey the law‖. factors that may affect the functioning of the law in society are: (1) the law/rule itself, (2) officers/law enforcers, (3) facility, and (4) society. for the functioning of the rule of law in society depends greatly on a harmonious relationship (proportionate link) between the four factors. (soekanto and abdullah 2010: 9-10). from the description above can be seen that for the era of globalization which is followed by the development of communication that is increasingly rapid and open, the harmonious relationship between the four factors above are the applicable regulations, law enforcers, supporting facilities and the public can affect the functioning of the law in the society required. thus it is known that one factor with another is closely related especially law enforcement factors so that law can be enforced. laws are formulated to regulate and protect the interests of the community in order to avoid collisions and to uphold human rights. law is a social order, which serves as a tool for governing society. but its function is not only to regulate the community but to set it worthy and useful (sudarto 1992: 6). there are various laws applicable in indonesia one of which is criminal law. this criminal law aims to prevent or inhibit the actions of society that are inconsistent with the rules of the applicable law, because the form of criminal law is part of the whole applicable law in a country, and laid the foundations and rules with a view to: 52 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils 1. determine which action is not committed, which is prohibited, accompanied by a threat or sanction in the form of a specific penalty, for anyone violating the prohibition. 2. determine when and in what cases, to those who have violated such restrictions may be imposed or sentenced to the penalty as has been threatened. 3. determine in what way the treatment can be carried out if any person is suspected of violating the prohibition (in moeljatno 2012: 12). such legal arrangements, can be known actions that are illegal and can be known also the reason someone to do acts that are against the law, so it can cause social reactions to the community. social reactions can also be said as an attempt to achieve social order, this form of social reaction will be more visible when the problems and threats of crime increase in quantity and quality. social control through this law will expose individuals or members of society to alternative choices of adjustment or irregularities, whereas in the form of the most serious violations or violations it is a violation of criminal law called a crime. crime is a phenomenon of public life, because crime is also a human problem in the form of social reality. the cause of the crime in the opinion of kartono (2005) can occur anywhere and anytime in life. while the rise and fall of the crime rate depends on ―the state of society, the state of economic politics, culture and so forth‖. in the international contexts, fraud actually can be identified one of by benford’s law, which this method cho and gaines (2007) that benford’s law is a fine example of a deeply non intuitive and intriguing mathematical result, simple enough to be described (if not fully explained) even to those without any formal training in math. the law pertains to the first digits of a collection of numbers. further, described that, an interesting application of benford’s law has emerged in recent decades. whenever first digits should follow benford’s law, it follows that deviations from the known distribution in data expected to conform signal some type of irregularity, possibly deliberate fraud. accordingly, benford’s law has been put to use as a simple and effective way to test for fraudulent manipulation of data, as might exist in accounts when embezzlement has occurred. this method generally can be used as an additional tool of the process of law enforcement as well as in the evidence proof process. one of the phenomena of public life that ever happened in society is a crime of fund investment committed by a cooperative. cooperative is a vehicle to build and develop the economic potential owned by its members in particular and society in general to be able to improve their economic welfare and can enhance the quality of community life. in carrying out its activities the cooperative has always adhered to the principles of cooperatives. economic principles that are used as the basic foundation of cooperatives in running their business are: independence, membership is open, management is done democratically, the distribution of the rest of the business is done fairly in proportion to the size of the business services of each member, the 53 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 reward is limited to the capital, cooperative education and cooperation among cooperatives. if the cooperative principles can be implemented by the cooperative properly then the cooperative will grow and develop well so that it can prosper the members in particular and society in general because the principles that distinguish the cooperative with other business entities and is an advantage for the cooperative. however, in reality there are several issues related to the role and function of cooperatives in promoting the welfare of its members, one of the cases of abuse of authority that occurred in the ksp 2 intidana semarang with the perpetrator is mr. handoko, se, his position as chairman of kps intidana br. handoko, se in this case uses ksp intidana as a means to commit fraud and/or embezzlement to the community by way of accumulating funds when there is already an appeal/ban from the ministry of cooperatives and small and medium enterprises of the republic of indonesia to stop the activities/postpone collecting funds and money of depositors of ksp intidana are used to purchase assets in the form of land that shm (certificate of ownerships, sertifikat hak milik) 3 on behalf of the suspect is bro. handoko, se. for these actions the victims made a complaint and report of the report to the police to carry out the action of an element of criminal acts of fraud and/or embezzlement and embezzlement perpetrated by mr. handoko, se. the police then continued the report by conducting investigations and investigations. the nature of the fraud, as highlighted by mahoney (1992), that the fraud will therefore be committed, and precaution costs, investments in lying, and allocative losses will all result. the magnitude of the wealth transfer itself provides a reasonable proxy for these other losses, and by removing all possibility of gain for the defendant, the recovery deters sufficiently to minimize these other losses. a good study is a study focused on the issues raised. therefore, because in this research there are many problems, but which will be examined only certain problems therefore the authors make efforts to limit the problem by emphasizing the title variable is on law enforcement of criminal acts of fraud and embezzlement, especially from the side of the investigation. criminal offense is a behavior that is threatened by criminal that is unlawful in nature which is related to error and done by people who are capable of responsible. fraud is an act with the intent to benefit yourself or others unlawfully by using false names, false dignity, deceit or lies that can cause others to easily hand over goods, money or wealth. embezzlement is a crime committed by a person who deliberately controls unlawfully an object wholly or partly belongs to another, but the person in getting the goods in his power not because of crime. 2 saving and loan cooperative, hereinafter called as ksp, koperasi simpan pinjam 3 hereinafter called as shm 54 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils investigation is a step to determine a truth and based on the truth it will be determined a judge's decision to implement a rule of criminal law. identification of problems related to the possibility of problems in law enforcement in this study can be taken identification as follows: mr. handoko, se in this case uses ksp intidana as a means to commit fraud and/or embezzlement to the community by way of accumulating funds when there is already an appeal/ban from the ministry of cooperatives and small and medium enterprises of the republic of indonesia to stop the activities / postpone collecting funds and money of depositors of ksp intidana are used to purchase assets in the form of land that shm (certificate of ownerships) on behalf of the suspect is mr. handoko, se. for these actions the victims made a complaint and report of the report to the police to take action of the element of criminal acts of fraud and/or embezzlement and embezzlement carried out by mr. handoko, se, with number of police report no. pol: lp/535/ix/2006/spk, dated september 27, 2006. referring to the stages of reporting the above case, based on police report no. pol: lp/535/ix/2006/spk, september 27, 2006, semarang district police investigator conducted case handling by conducting first by place genesis case, by searching for information and evidence. it has been described earlier that this investigation process is the initial stage of the investigation so that the investigation process can proceed smoothly, at the inquiry stage, all information and evidence must be adequate, because all the facts, explanations, and evidence will be used as the basis of the investigation. in the case of seeking information and evidence, the investigator is obliged to immediately report the results of his investigation to the investigator (article 5 paragraph (2) of the criminal procedure code). the act of suspect mr.handoko, se is included in the element of criminal act of fraud article 378 of the criminal code, both objective and subjective. the problems caused by the actions of mr. handoko, se is: 1. moving other people (victim: mrs. srijati sulaeman) to submit something (handing money/money to be place /stored in ksp intidana). the act is done deliberately to benefit themselves unlawfully, meaning that when the act of moving others to hand over something (save the funds) done the financial state of the cooperative is in a state of minimal liquidity and ordered to stop the activity/delay raising funds, which should not allowed to conduct fund raising activities. 2. by using false circumstances, both with reason and trickery, as well as by written words of lying, persuading people to give something and in this case is mr. handoko, se made a brochure with the inclusion of mission vision and so forth that as if true so that the victim is moved to hand over the money to be placed / stored, even though it is not appropriate or contrary to the actual situation and if the victim knows, the victim will not be able to hand over something. 55 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 3. doing something fraud and embezzlement of intentional cooperative fund by deliberate means mr. handoko, se wants to realize the deed and he knows, understands the value of deeds and conscious (even cans) of the consequences arising from his actions. 4. elements against the law made by handoko, se because in the embezzlement of elements have is the element of behavior, in the form of objective elements. for the completion of embezzlement is required on completion or the realization of possessing acts, it is known that in the embezzlement can be fulfilled its objectivity element if the object of evil objects in the hands of handlers. 5. members' trust in ksp intidana due to weak liquidity and management of ksp intidana focused on the authority and authority of the chairman of the board (mr.handoko) in effect one men show. while in the cooperative management executing the task of collective savings and loan collectively collegial, including in making decisions for the interests of cooperatives, can not be decided unilaterally by 1 (one) board only. the accountability of mr. handoko, se as the head of the intidana cooperative on the problems that arise are: 1. seeks to cooperate with regard to chronology, evidence and evidence with the investigator to make the investigation process run smoothly and quickly. 2. replace all losses of victims of fraud and embezzlement of intidana semarang cooperative. does not eliminate physical evidence including administrative evidence such as receipts, report books and so forth. one of the cases that ever happened in society is a criminal act of fund investment conducted by a cooperative. based on the background above, problems would be analyzed concerning to (1) how is the implementation of the investigation process against the perpetrators of criminal acts of fraud and/or embezzlement of the ksp intidana in central java’s regional police?, and (2) what is the dimension of criminal law enforcement when conducting the investigation of criminal acts of fraud and/or embezzlement by the head of the ksp intidana in central java’s regional police? referring to the background and the above problems it is hoped this research will provide benefits that is: 1. theoretically for the purpose of the research itself is to increase experience in the field of research and develop the science of law, especially in the case of criminal matters concerning the investigation of criminal acts of fraud and / or embezzlement of intidana cooperative in central java police resort. 2. practically 56 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils from the results of this study is expected to obtain a thought that can be donated to the legal practitioners, and the public about the legislation, especially in criminal law that is the application of criminal sanctions against conducting investigation fraud crime and / or embezzlement intidana cooperative in polda central java, eliminating offenses with similar mode. based on the description above, the approach method used in this research is sociological juridical approach. sociological juridical approach according to soemitro (1995: 97) is: ―an approach method which describes a statement in the field based on legal principles, rules of law, or valid legislation‖. referring to the description above, sociological juridical approach can be used in this research, especially in reviewing the investigation of criminal acts of ksp intidana in central java’s regional police 4 . specification in this research is descriptive research. according sunggono (2003) specifications are descriptive namely: a study conducted by describing the facts that exist or activities carried out by the object under study. descriptive research, aims to provide a very accurate picture of a situation, the symptoms of a particular individual or group. from the description above, the specification of this research is considered able to help describe the reality of the activities under study by referring to the realities or activities of the process of investigation of criminal acts of ksp intidana fraud in polda central java. population according to sugiyono (2009) is: "the generalization region consists of objects or subjects that have a certain quantity and characteristics applied by researchers to be studied and then drawn conclusions. thus it is known that the population in this study is the case files of criminal acts of fraud investment funds that occurred in the area of police resort semarang especially that occurred in central java regional police. regarding the sample it is known that the sample is part of the number and characteristics possessed by the population. understanding the sample according to sugiyono (2009) are: some of the population and characteristics possessed by the population, if large populations and researchers are not possible to study everything in the population, such as limited funds, energy and time the researchers can use samples from that population. thus it is known that the sample in this study is a resume based police report no.pol.: lp/b/426/xi/2015/jateng/reskrimum, november 5, 2015 that occurred in central java regional police. the sampling method used in this research is non-random sampling. according sunggono (2003: 18) non random sampling that is: sampling is done in certain ways. namely purposive sampling. means that the sample determination considers certain criteria that have been made against the object in accordance with the objectives of the study. 4 hereinafter called as polda jateng 57 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 with reference to the determination of non-random sampling samples, it is hoped that it will be able to answer the specific problems regarding fraud crimes by the chairman of ksp intidana, handoko, se based on police report no.pol .: lp/b/426/xi 2015/jateng/reskrimum, november 5, 2015. data analysis method in this writing is obtained from research that will be analyzed qualitatively, that is by analyzing existing data based on theories relating to the problems studied, then what is expressed by respondents, both oral and written. so, after the required data is collected completely, the next step that must be done is the data analysis phase, namely the data utilization stage in such a way that can conclude the truth that can be used in answering the subject matter. in accordance with the data collected then the data analysis conducted using qualitative method that is analyzing the data collected both from the primary data and secondary data, so as to achieve clarity of the problem studied in the form of descriptions arranged systematically. in the writing of this law, the author uses inductive methods in the withdrawal of conclusions. by using this inductive method then the data obtained from the results of field research and literature study results collected and then analyzed and drawn conclusions. the investigation process against the perpetrator of fraud and/or embezzlement in ksp intidana in central java regional police article 1 point 2 criminal procedure code is explained that ―investigation is a series of actions by investigator with the way that prescribed in law to seek and collect evidences to find the suspect‖. the investigation done with a notice to the public prosecutor that the investigation against a criminal event had commenced or called notice of commencement of investigation (spdp). if in the investigation the evidence is insufficient to investigate or the event is not a crime of mentioned investigation, it may be terminated by law. if the victim or the victim’s family does not accept the termination of the investigation, the victim or their family may ask for a pretrial to the court head in accordance with regulated legislations. if the investigator has completed the investigation, the investigator shall submit the case file to the prosecutor immediately. if the case file is incomplete, the case file must immediately returned to the investigator with the evidence and if within 14 days the file does not return, the investigation is considered completed. 58 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils for the fraud and embezzlement case in ksp intidana which done by the suspect handoko, the investigation process was conducted based by the police report number: lp/b/426/xi/2015/jateng/reskrimum, november 5 th , 2015 and inquiry/order letter number: 336 b/xi/2015/dit reskrimum november 17 th , 2015 and also investigation order number: 336 a/xi/ 2015/dit reskrimum november 20 th , 2015. according to the police reports above and investigation order, the police summon the victims and/or the witnesses which already regulated in the provisions of the criminal procedure code (kuhap), one of the investigator’s task is to summon people to be interviewed and examined as a witness. the victim's job here is to inform the police (investigator) about the witnesses who knows about the case they have. that means, the investigator is the one who call the witness to provide information to the investigator and the information will be presented at the court later. summons is one of forced attempts in the investigation phase other than to arrest, detention, search and confiscation of documents. and for the meaning of an investigation listen in article 1 point 2 of the criminal procedure code is a series of investigator's actions based on the regulation prescribed by law to seek and collect evidence which will makes the light of a crime that occurred to find the suspect. because of it, the purpose of the summons is an attempt to find evidence to make light of a crime act. when making a summons, the investigator is obliged to give a written file for it. deadline period of the summons for the time to attend calls should be made with regard of a reasonable deadline period of 3 (three) days at least to fulfill the summons. in practical, the summons are delivered to the called side in various ways, such as requesting the called side to take his/her own summons, entrust them to a legal counsel or the investigator themselves deliver it directly to the called side. in its principle, the summons should be given to the called party with a receipt, except in case when: the person is not present at its residence, the summons shall be submitted through the person’s family, legal representative, head of neighborhood association/citizen association, village head or other person who can guarantee that the summons can be delivered to the person involved as soon as possible; or if the called side is outside jurisdiction of the police unit, the summons can be delivered through the police unit in the involved side’s residence or sent the summons by postal mail service, accompanied by receipt of the delivery. in case that the called side is absent, the investigator will issue a second summons. if the called side has no reasonable and good reason for failing to come after the second summon, then the investigator may issue a letter of instruction to the called side. however, this isn’t applicable if the called side fails to fulfill the summons for proper and reasonable reasons, the 59 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 investigator's examination may be conducted at a place of residence or elsewhere with regards to the appropriateness. a person may be called by the investigator to be examined as long as within the capacity of witnesses, expert witnesses or suspects. for the examination of witnesses, if the witness to be expected cannot be present in the trial, the witness must be sworn before the examination and make an official report. if a person is summoned by the person’s capacity as an expert witness, the investigator shall first ask pledge from the expert witness that they will give information based on his / her expertise. calling of victims or witnesses in cases of fraud and/or embezzlement of the ksp intidana, among others: a) without a summons having been examined on the witness on behalf of sjri sulaeman and having been examined on november 20, 2015 and january 22, 2016; b) without a summons, a witness has been examined on behalf of mr. kwan sieo pwee on november 20, 2015; c) without a summons, a witness has been examined on behalf of mr. tirta wawa's power on november 20, 2015; d) without a summons there has been an examination of witnesses on behalf of mr. ridus ridando on november 23, 2015; e) without any summons there has been an examination of the witness on behalf of mr. edwin listyo supriyanto on november 23, 2015; f) without a summons having been examined on the witness on behalf of mr. kimyati on november 23, 2015; g) without a summons, a witness has been examined on behalf of mr. ikri ika on november 23, 2015; h) without a summons, a witness has been examined on behalf of sdr.teguh susilo on november 24, 2015; i) without a summons of the witness on behalf of sdr.tonni suprianto on november 24, 2015; j) without a summons having been examined by the witness on behalf of mr. vincentia on november 24, 2015; k) based on the notification letter no: s.pgl / 1062 / xi / 2015 / dit reskrimum dated 20 november 2015 witnesses were examined on behalf of sdr.bugi prayogo on november 24, 2015; l) based on the letter of no: s.pgl / 1064 / xii / 2015 / dit reskrimum dated 20 november 2015, witnesses have been examined on behalf of mr. martha rahayu soetikno on november 24, 2015; m) based on the notification letter no: s.pgl / 1066 / xii / 2015 / dit reskrimum dated 21 november 2015 witnesses were examined on behalf of mr. eka sarworini on november 25, 2015 and 2 february 2016; 60 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils n) based on the notification letter no: s.pgl / 1065 / xii / 2015 / dit reskrimum dated 20 november 2015 witnesses were examined on behalf of mr. alfamira visiesti on november 25, 2015 and january 18, 2016; o) without any summons there has been an examination of the witness on behalf of sdri.evelyn ariani mulyono on november 25, 2015; p) without a summons, a witness has been examined on behalf of sdri.sri djajati on november 26, 2015; q) without a summons, a witness has been examined on behalf of mr. sylvia pratiwanggana on november 26, 2015; r) based on the letter of no: s.pgl / 1063 / xii / 2015 / dit reskrimum dated november 20, 2015, witnesses were examined on behalf of mr. rochaedi, se on november 30, 2015; s) based on the notification letter no: s.pgl / 1129 / xii / 2015 / dit reskrimum dated december 21, 2015 has been examined witnesses on behalf of sdri.damar tuwuh palupi aka agnes winantoro on november 29, 2015; t) based on the calls no: s.pgl / 1154 / xii / 2015 / dit reskrimum dated december 31, 2015 has been examined on behalf of the witness sdri.okky wibowo on january 13, 2016; u) based on the letter of no: s.pgl / 1153-a / xii / 2015 / dit reskrimum dated january 7, 2016 has been examined on behalf of the witness sdri.setiyorini on january 13, 2016; in the victim or witness’ examination process, they have the right to be clearly informed by using the language they understand about the reported criminal case. investigations that conducted by the investigators in the principle is meant to gather information on the fraud and/or embezzlement crime of the ksp intidana, after obtaining clear and accurate information along with the evidence from witnesses or victims, then the police’s action is to issue an arrest warrant against suspect handoko. according to arrest warrant number: sp.kap/14/ii/2016/ ditreskrimum february 9 th , 2016 mr. handoko, se has been arrested and has been questioned as a suspect on february 9 th , 2016. after that the suspect has been detained based on detention warrant number: sp.han/12/ii/2016/ditreskrimum february 9 th , 2016 since february 9 th , 2016 and has been released based on the letter of expenditure detention number:sp.han/12-b/ii/ 2016/reskrimum on february 23th, 2016. in the process of investigation, investigator also conducted a seizure of evidence based on foreclosure order number: sp.sita/12/i/2016/dit reskrimum on january 14 th , 2016 to seize the evidence based on the list of evidence which attached to the file of the case. 61 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 based on the analysis above, there is a hint that a criminal acts of fraud and/or primary embezzlement in title of subsidiary embezzlement as referred in article 378 of the criminal law and/or primary 374 kuhp subsidiary 372 of the criminal law that occurred in ksp intidana conducted by suspect mr. handoko , se. since 2014 ksp intidana is not working well anymore (having loss) and mr. h rochadi, se already warned mr. handoko, se to not accept more funding (time deposits, savings, etc) because the cooperative already in a deficit and there is a worry that the loss of ksp intidana will increases. mrs. srijati sulaeman and other victims feels harmed because they did not know that ksp intidana is in a deficit since 2014 and time deposits they put in ksp intidana is already on its deadline and withdrawal cannot be done. money from the depositors of intidana cooperative was used by mr. handoko, se as the head of ksp intidana to buy land with his behalf, where the fact is that asset of cooperative may not be used for behalf of private name. based on the description above about the research results of investigation process of fraud and/or embezzlement within the ksp intidana, analytically can be explained that the basis of the investigation of criminal acts of fraud and embezzlement allegation within ksp intidana is because the existence of model b police report received from the complainant or the victim about criminal act of fraud related to ksp intidana fund in jurisdiction of central java’s regional police, the model b police report was accepted by central officer of integrated police service. then handed over to the criminal investigation unit to be handled by investigators or assistant investigators and conducted initial inspection in the form of inspection official report against the complainant or victim to find an existent criminal incident and whether there is sufficient evidence or not. based on the interview with central java police investigators (2017) it is known that after the file of investigation case is ready, the investigator shall immediately conduct phase i or delegating the case file to the public prosecutor. in 14 (fourteen) days after the case files are delegated and there is no other evidence from the public prosecutor, then the case files are considered complete (p21) by the public prosecutor and the investigator immediately implements phase ii or the submission of the suspect and evidences to the public prosecutor, the investigation process by the investigator is completed after completing the phase ii or the transfer of suspects and evidence phase. the investigation process, sometimes face some problems and challenges, as well in on the case of fraud and embezzlement, as emphasized by julaiyanti (2016) that the weak control and even no control against debitcredit cooperation give chance for deviations against regulation regarding with debit credit cooperation. the deviation is directed to criminal acts which make the caretaker and manager of cooperation to be suspected and criminal 62 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils acts which have potency to be happened in debit-credit cooperation activity are criminal act of embezzlement and fraud. implementation of the investigation in initiating the investigation process that is only carried out by the spk is due to the administration of criminal proceedings governing the conduct of the investigation is not clearly defined. implementation of investigation activities is basically done by investigators and auxiliary investigators. it started after the police report was received by investigators and auxiliary investigators. the investigation process of investigators and auxiliaries is as follows: 1. contact the complainant and complete the initial inquiry (mindik) administration the investigator after receiving the report and distributing the report to one of the members who are under it by assessing the ability of members with the quality (weight) of the case, it submitted to next process. after the report is recorded in the police report book of the investigator group level (recording of the report in this book is not provided for in the administrative provisions of the investigation), the investigator or auxiliary investigator contacts the complainant by telephone to make an initial notice that the case reported is handled by the investigator or auxiliary investigator and make an agreement on the timing of the examination, if the relationship with the complainant cannot be carried out by the investigator to make a formal summons by a summons as a witness. along with this administrative investigation (mindik) this investigator and auxiliary investigator filed the initial investigation administration to be signed by kasat as the investigator first signed by kapokdik and kanit. the mindik consists of a notice to the complainant about the investigator and the auxiliary investigator who handles the case, the search warrant and the summons. the administration of the investigation is structured in a specially designed folder in which a complete report with a memorandum or a position of appointment of the investigator and the auxiliary investigator as the investigating officer shall be provided. each unit has the same design map only distinguished on the color of the map only. 2. examination of witnesses and collection of evidence in this activity, an investigator or auxiliary investigator based on an official call or telephone connection meets with the complainant, the examining room at the appointed hour. an investigator or auxiliary investigator conducting witnesses or suspects in one day from one person to three persons whether or not they are related in a single police report or in a different report submit the important information. the information submitted by the complainant, investigator or investigator 63 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 always asks for other supporting evidence. information that is not supported by other evidence, then the information has no quality. 3. determine and seek and conduct suspect checks determining the status of the person reported on the summons is done with caution. calling is made against a person who is reported as a witness status if the investigator and auxiliary investigator based on the examination of the witness and the evidence obtained in the previous investigation has not indicated that he or she has committed a criminal offense or has not found that the reported event is a criminal offense the criminal or the called party. a call made directly as a suspect is committed when it is convinced that the reported incident is a criminal act of fraud, there is evidence supporting a person reported as a criminal offender or to fulfill the interests of a particular party. 4. conducting a forced effort against the person being reported the authority granted by law to investigators and auxiliary investigators in carrying out forced efforts aimed at facilitating the process of investigation, especially in a proof is often on the criminal acts of fraudulent use only to meet the request of the complainant in order to achieve its interests. 5. conduct investigative action the results of the investigation activities set forth in the administration of the investigation shall be prepared in the form of a file if the case shall be terminated by the issuance of a warrant for termination of investigation (sp3) or if the case shall be submitted to the prosecutor. 6. formulation and submission of case files for the arrested suspect, the compilation and submission of the file and the statement of the completeness of the case file shall be taken into account the period of time. the compilation of files and submission of slow files and back and forth due to incomplete files may result in suspects being detained to be issued by law. this becomes a problem for the investigator and influences the leader's assessment of the investigator's performance if the suspect has to leave by law because the suspect's inaccuracy is expected to escape when released from detention. 7. supervision and control of fraud criminal investigation supervision and control of cases by superior investigators and investigators is very influential on the process of solving criminal investigation. this activity includes data collection in the administrative registration task book, any investigation activities conducted by the 64 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils numbering of each letter issued as the basis for conducting such investigation activities. in the case of the implementation of the investigation process of fraud crime and/or embezzlement of ksp intidana, there are several obstacles, among others: 1) factors of law enforcement officials such as lack of coordination between the police force to make information obtained by police officers overlap. though the information from the victims and witnesses has a huge share of the investigation stage, it has to be clear and proper. on the basis of this also the public confidence of law enforcement is also lower. however, in the criminal acts of fraud and embezzlement of the ksp intidana in semarang city during the investigation stage, inhibiting factors are more likely due to lack of coordination among law enforcement officers. 2) the ignorance factor of the owners and management of the cooperative with the imposition of the process of criminal acts of fraud and embezzlement of money in the cooperative so that they are not careful in managing the financial members of the cooperative who keep his funds in the cooperative due to the absence of criminal sanctions in the criminal code fraud and embezzlement within the cooperative. however, in the case of ksp intidana the owner of the cooperative has in carrying out his cooperative has committed a criminal act of fraud and embezzlement by deliberately owning against the right of a thing entirely or partially belonging to another person and the goods are in his hands as regulated and threatened with criminal sanction in article 374 book the criminal code (penal code). against the owner / manager of the cooperative may be sentenced to imprisonment by using the criminal embezzlement article, which has the essential element 'element because of his job or his position ", where because the perpetrator is under the umbrella of the cooperative, then the individual who becomes the perpetrator can still be snared even though the victim is the depositary customer in the cooperative not saving money on the personal owner / cooperative management. 3) cultural factors that are actually united with the factor of society, because this problem related to system of values that became the core of material culture, which is benefiting from the results of time deposits. culture that is actually less good to do is always follow the activities / actions and information followed by relatives or people he knows without knowing in detail what was done by the previous person. 4) factor of facility or facility. with the support of adequate facilities and facilities law enforcement will be done well. facilities in question including human resources, 65 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 good organization, equipment that qualified, and adequate funding sources have to be properly provided. if the facilities and facilities can be met, then law enforcement will run optimally. in the case of intl. ksp therein contains criminal acts of fraud and embezzlement. regarding the criminal act of fraud has been regulated in article 378 of the criminal code, while the criminal act of embezzlement is governed by article 372 of the criminal code. judging from the motive, the criminal act of fraud aims to gain profits, by obtaining goods, given debt, or deleted debt. people who commit felonious crimes face a maximum of 4 years imprisonment. article 378 of the indonesian criminal code stated that anyone with the intent to benefit himself or others unlawfully, by using false or false dignity, by trickery or by lies, to move others to surrender things to him, or to give debt or write off accounts, is threatened fraud with a maximum imprisonment of four years. furthermore, the criminal act of embezzlement, seen from the motive aims to have goods or money that when it exists in the mastery of which goods or money is actually belongs to others. the perpetrators of criminal act of embezzlement are threatened with imprisonment for a maximum of 4 years. read more article 372 of the criminal code stated that anyone who intentionally and unlawfully owns a thing wholly or partly belongs to another, but who is in his power not because the crime is threatened by embezzlement, with a maximum imprisonment of four years or a fine of up to nine hundred rupiah. the criminal acts of fraud and embezzlement in the criminal code are set forth in book ii on crimes against property, namely in the form of an attack on the legal interests of the person for his property. in general, the elements of criminal acts against these assets include the objective and subjective elements. the objective element in question is in the form of things as follows: 1) the element of material deed, such as the act of taking (in the case of theft), forcing (in the case of extortion), owning / claiming (in case of embezzlement, moving the hearts / minds of others (in the case of fraud) and so on; 2) elements of objects / goods; 3) the elements of circumstances that accompany the object object that must be owned by others; 4) elements of certain efforts used in committing a prohibited act; 5) constitutive elements arising after the prohibited act. while the subjective element is composed of: 1) the element of error formulated with words such as "with intent", "intentionally", "which it knows / presumably presumes" and so on; and 66 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils 2) elements against the law both explicitly stated in the formulation of the article or not. opinions from experts such as criminal law expert unwahas prof. dr. mahmutarom hr, sh,. mh, as well as criminal law expertise unissula (r. sugiharto, s.h., m.h bin alm r. soepangat) has sufficiently explained that the ksp intidana case contains the existence of criminal acts of fraud and embezzlement. to be able to declare a person as a perpetrator of embezzlement, the panel of judges of the court must also conduct an examination and prove legally and convincingly, whether it is true and the person's actions have been proven elements of criminal act of embezzlement either in the form of subjective elements and objective elements. in the context of proof of subjective elements, for example, the deliberate intent of the embezzlement (opzet), gave birth to the verification implications of whether (based on legal facts) the defendant did: 1) "desire" or "intend" to control an object unlawfully. 2) "know / realize" with certainty that what he wants to master is an object. 3) "know / realize" that the object is partly or wholly belongs to another person. 4) "know" that the object is present to him not for a crime. while related to the objective elements of the offense of embezzlement, according to the perspective of criminal law doctrine there are several things that must be understood also as follows: a) the perpetrator of embezzlement shall exercise the possession of an object that belongs to the other person unlawfully. elements against the law (wederrnechtelijk toeeigenen) this is a thing that must be attached to ad there is the act of controlling objects belonging to others earlier, and thus must also be proved. according to van bemmelen and van hattum, the meaning unlawfully in this case is sufficient and can be interpreted as "contrary to the propriety in the community." b) the scope of the meaning of an object belonging to another person controlled by the perpetrators of unlawful embezzlement, in practice, tends to be limited to the understanding of objects which by their nature are transferable or commonly referred to as "moving objects". c) the notion that objects under the control of the perpetrators of embezzlement, in part or wholly belong to others, is meaningful (according to arrest hoge raad) that there must be a real direct connection between the perpetrator and the object under his control. referring to the above description, the evidence found in the case of fraud and embezzlement is in accordance with article 184 criminal procedure code which contains the evidence instruments, namely: 67 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 (1) legal evidence consist of: a. testimony of witnesses; b. expert description; c. letter; d. instructions; and e. statement of defendant. (2) things that are generally known do not need to be proven. in addition to article 184 of the criminal procedure code, also in accordance with article 185 of the criminal procedure code which describe the witness in the court. 1. article 185 paragraph 1, stated that: the testimony of the witness as evidence is what the witness stated in the trial. 2. article 185 paragraph 2, stated that: the description of a witness alone is not sufficient to prove that the defendant is guilty of the act he is accused of. 3. article 185 paragraph 3, stated that: the provisions referred to in paragraph 2 shall not apply if accompanied by any other valid evidence. 4. article 185 paragraph 4, stated that: separate witness statements about an event or circumstance may be used as a valid proof if the witness's statements are related to one another in such a way as to justify a particular event or circumstance. 5. article 185 paragraph 5, stated that: neither opinions nor inventions obtained from the results of thought alone are not the testimony of witnesses. 6. article 185 paragraph 6, stated that: in assessing the truth of the testimony of a witness, the judge must seriously observe: a. the correspondence between witness testimony with each other. b. adjustment of witness testimony with other evidence. c. reasons that might be used by witnesses to give certain information. d. the way of life and morality of witnesses and everything that can generally affect whether or not the information is believed. 7. article 185 paragraph 7, stated that: the statements of witnesses that are not sworn in alignment with one another are not evidence, but if the statements are in accordance with the statements of the witnesses the oath may be used in addition to other legal evidence. in the theory of determination should use the principle of presumption of innocence. the principle of presumption of innocence is regulated in article 8 (1) of law number 48 year 2009 on the judgment, namely: ―anyone suspected, arrested, detained, prosecuted or brought before a court shall be presumed innocent before any court decision declare his guilt and have obtained a permanent legal force‖. 68 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils however, for police organizations it is not possible to use the principle of presumption of innocence because it has found legal evidence. in this case, 2 (two) valid evidences are in the case of police no. police number: lp/b/426/xi/2015/jateng/reskrimum. and on the basis of 2 (two) valid evidences police conduct investigations on police no. police no. lp/b/426/xi/2015/jateng/reskrimum, november 5, 2015 and task force /investigation no. pol: 336/xi/2015/dit reskrimum dated 17 november 2015 and investigation order no pol: 336 a /xi/2015/dit reskrimum dated 20 november 2015. if we observe the overall provisions of the criminal procedure code, it can be concluded on the investigation stage of the case number of police no.pol: lp/b/426/xi/2015 /jateng/reskrimum, dated november 5, 2015 and duty / inquiry letter no pol: 336 b /xi /2015/dit reskrimum dated 17 november 2015 and investigation order no pol: 336a / xi / 2015 / dit reskrimum dated 20 november 2015 are: 1. beginning with the material of criminal input; 2. take first action at the scene; 3. calling and examining suspects and witnesses; 4. conducting required forced effort; and 5. the making of the minutes. minutes of examination (bap) have an important role on the level of investigation because the trial of the bap will be used as a reference in the hearing. the investigation is a crime of investigation in respect of and in the manner prescribed in this law to seek and collect evidence which with evidence it makes war on the offense and to find the suspect. the investigation is carried out by the authorities: the investigator. according to article 1 point 4 of the criminal procedure code, the investigator is an "officer of the republic of indonesia police who is authorized to conduct an investigation". then reaffirmed in article 4 of the criminal procedure code, that investigators are "every official of the republic of indonesia police". while the authorized investigation is the investigator. according to article 1 paragraph (1) of the criminal procedure code jo article 6 paragraph (1) of the criminal procedure code, the investigator is "a police officer of the republic of indonesia or a certain civil servant officer who is specifically authorized by law to conduct an investigation". in the case of not using the principle of presumption of innocence in this case, it does not mean that the police do not understand the right of the suspect to be primarily concerned with human rights, but that is because the police has referred to the invention of 2 (two) valid evidences. 69 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 criminal law enforcement dimensions in the implementation of investigation against perpetrator of fraud and/or embezzlement of ksp intidana in central java’s regional police law as a form of configuration for human civilization developed together with society. lately, changes often happened within indonesian society which known as moral crisis. ediwarman (2012) emphasized that a law applies philosophically if the law is in accordance with legal ideals (rechts idee) as the highest positive value, which is to form a just and prosperous society based on pancasila and the 1945 constitution, but in the other hands, crime continues to develop along with the development of human life. one form of crime that still often happened in society is fraud, and embezzlement. for the person who did it, that criminal act is not really hard to do. fraud can be done just with good communication ability so the perpetrator can convince their victim. fraud is a form of deceit, in a shape of false words, or deliberately convince people to give valuable goods to the perpetrator which has a purpose to make a profit for the perpetrator which against the rights. the general characteristic of deceit is making the victim deceived so they want to give their belongings or money. crime fraud is a form of “materieel delict” which means to make it occurs, it must have an effect. as regulated in second book of chapter xxv article 378 of the criminal code, that is: anyone with the intention to benefit himself or others unlawfully, by using fake name or fake dignity, by trickery or by series of lies to persuade others to give valuables to them, or in order to make them having a debt or abolishing credits, is threatened with a imprisonment for a maximum of 4 (four) years by doing fraud. crime in form of fraud and embezzlement are threatened with criminal sanction, in its enforcement, it still lacks of deterrent effect on its violation, because in the enforcement of the criminal law, only regulation of an act arranged in law is not enough, law officer as executor of the provisions of the law are also needed and institutions authorized to deal with such crimes like the police, prosecutors and court. according to soekanto (2010), law enforcement is a harmony of relationship between values which described in definite principle with 70 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils concrete act as a series of final stages in value translation to create, maintain and protect peace in life. moreover, it said that the act of law enforcement is not solely implementing law, even in fact indonesia has that tendency. there are 3 (three) steps of law enforcement by the police, which is as follows: a. formulation stage, the stage of criminal law enforcement in abstracto by legislatives. in this stage, the establishment of law is by the act of choosing the values which fitting with the current and future condition, then formulate it in form of criminal legislation to achieve the best legislation result, in the purpose of fulfilling the requirements of justice and efficiency. this stage can also be called legislative policy stage. b. application stage, the stage of criminal law enforcement (the stage of applying criminal law) by law enforcement officers which includes the police, prosecutors, and to the courts. c. execution stage, the stage of enforcement (implementation) of criminal law concretely by the criminal law enforcement officers. in this stage, the law enforcement officers has a duty to enforce criminal law which created by formed law by applying punishment that established by the court. law enforcement officers when doing their duty must follow the rules of criminal legislation which created by the establishment of law and the values of justice and efficiency. this stage also often called executive or administrative stage. law enforcement in the case of fraud and or embezzlement criminal acts within the ksp intidana is done by applying article 378 of the criminal law and article 374 of the criminal law. related to fraud according to article 378 criminal law will be described as follows: anyone with the intention to benefit himself or others unlawfully by using fake name or fake dignity, by trickery or by series of lies to persuade others to give valuables to them, or in order to make them having a debt or abolishing credits, is threatened with a imprisonment for a maximum of four years by doing fraud. further, the elements listed in article 378 of criminal law are: 1. anyone; 2. with the intention; 3. to benefit himself or others by ignoring rights; 4. by using fake name or fake dignity, by trickery or by series of lies to persuade others to give valuables to them, or in order to make them having a debt or abolishing credits. according to the description above, then article 374 of criminal law contains these elements: 1. fraud 2. which done by a person. 3. whom its authority of the goods is caused by their work relationship or because of its livelihood or being paid for it. 71 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 that suspect, mr. handoko, se as the head of ksp intidana has has committed a criminal act of embezzlement of cooperative money and used them for the private benefit, one of them is by purchasing land assets. if described, the elements contained in article 374 of the criminal law are: 1. embezzlement elements; a. anyone this element is referring to the person who has allegedly committed acts of embezzlement which is mr. handoko, se as the head of ksp intidana (element fulfilled). b. deliberate element this element is referring the suspect mr.handoko, se as the head of intidana cooperative intentionally purchased the certificates which money was obtained from depositors of ksp intidana. c. element of authority by opposing rights this element is referring the suspect mr. handoko, se as the head of intidana cooperative intentionally purchased the certificates which money obtained from depositors of intidana cooperative whereas he has no rights and made the certificate as his behalf. d. the element of valuables which fully or partially belongs to another person. the money that owned and used by the suspect mr. handoko, se as the head of intidana cooperative is in fact belong to the victims who have been paid to join the time deposits program and received proof of payment in form of certificates of time deposits which contains payments of money for taking part in the savings program received by intidana cooperative e. the element of the item in his authority is not from crime. the money from the victims and the witnesses are submitted to the head of intidana cooperative which is suspect mr. handoko, se for time deposits but the money was used to buy certificate on behalf of the suspect instead. 2. element which done by a person; in this case, the suspect mentioned in this element is the person who allegedly commited an embezzlement due to his position, which is mr. handoko, se as the head of ksp intidana (element fulfilled). 3. element which authority of the goods is caused by their work relationship or because of its livelihood or being paid for it this element refers to mr. handoko, se as the head of ksp intidana who embezzled money from the depositors of ksp intidana and used it to buy the land ownership certificate on behalf of the suspect mr. handoko, se. the jurisprudence of a verified cooperative case is a cipaganti cooperative fraud case it is known that the supreme court (ma) is 72 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils correcting the court's verdict under it related to the case of the cipaganti cooperative's deceived fraud. this case makes hundreds of people deceived by the amount of hundreds of billions of dollars. cipaganti is a cooperative which was established on february 15, 2002. it turns out later the management of this cooperative is problematic. dozens of members of the cooperative felt disadvantaged with the system built so that members of the cooperative complained to the police case. beforehand, the investigator put four people to account for his actions. they are: 1. founder of cipaganti group, andianto setiabudi (54). 2. vice chairman of cipaganti cooperative, julia sri redjeki (63). 3. treasurer of cipaganti cooperative, yulinda tjendrawati setiawan (46). 4. employee cooperative cipaganti, cece kadarisman (59). (data source: detik.com, 2016). the four are charged with banking law and article of fraud and embezzlement according to the criminal code. prosecutors demanded each of them to be sentenced to 20 years in prison and a fine of rp 200 billion each or a total of rp 800 billion. on this demand, on july 15, 2015 the bandung district court sentenced each of the following: 1. andianto setiabudi sentenced to 18 years in prison and a fine of rp 150 billion. 2. julia sri redjeki sentenced to 8 years in prison and a fine of rp 15 billion. 3. yulinda tjendrawati setiawan was sentenced to 6 years in prison and a fine of rp 15 billion. 4. cece kadarisman was sentenced to 10 years in prison and a fine of rp 15 billion. (data source: detik.com, 2016). on october 21, 2015, the high court (pt) bandung aggravated the defendants' sentence to: a) andianto setiabudi sentenced to 18 years in prison and a fine of rp 150 billion. b) julia sri redjeki sentenced to 15 years in prison and a fine of rp 100 billion. c) yulinda tjendrawati setiawan was sentenced to 15 years in prison and a fine of rp 100 billion. d) cece kadarisman was sentenced to 10 years in prison and a fine of rp 75 billion. knowing the verdict, andianto et al appealed. but the supreme court rejected the defendant's appeal. rejected the appeal of the public prosecutor (prosecutor) with repairs, and the case no. 173 k / pid.sus / 73 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 01, 2018 2016 was drafted by a panel of judges consisting of supreme court judge artidjo alkostar, supreme court judge prof. surya jaya and supreme court judge sri murwahyuni. sitting as a substitute clerk in the verdict on march 29, 2016 was retno murni susanti. improvement in question is the asset used as evidence seized and given to customers. the assets are assets presented by the prosecutor to be used as evidence, namely: (1) five mercedes-benz buses, (2) six minibus brand isuzu, and (3) four komatsu brand heavy equipment. currently, west java regional police has established a new status against andianto, a suspected money laundering case (tppu) in the case. andianto has objected to the determination of the new suspect and filed a pretrial to the bandung district court. but the single judge kartim rejected the pretrial on december 31, 2015. kartim reasoned evidence of investigation letter related to tppu by west java police investigators and all asset seizures are valid or true. conclusion based on the results of the research and study, it can be concluded that the implementation of the investigation process against the perpetrator of crime act fraud and/or embezzlement within ksp intidana in central java’s regional police was held after a police report number: lp/b/426/xi/2015/jateng/reskrimum, november 5th, 2015 and task/inquiry letter number: 336b/xi/2015/dit reskrimum november 17th, 2015 and investigation order number: 336a/xi/2015/ditreskrimum november 20th, 2015. the next step taken by the police is by doing summon and examine the victims or witnesses, arresting the suspect, detention of the suspect and the seizure of evidences. the investigation process which done by the investigators and assistant investigator begun by calling the person who made the report and fulfilling the administration of preliminary investigation and then examined the witnesses and gathering the evidences, determining, seeking, and conducting an inspection to the suspect by arresting and detention of the suspect. the dimension of criminal law enforcement in conducting the investigation against the perpetrator of crime act of fraud and/or embezzlement within ksp intidana in central java’s regional police is to minimize the occurrence of the similar crime act, in this case for the suspect in the future because the crime act of fraud and embezzlement can be punished by the law of fraud and embezzlement. 74 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang chandra andryanto jils 3 (1) may 2018, 47-74 http://journal.unnes.ac.id/sju/index.php/jils bibliography cho, wendy k tam and brian j gaines. ―breaking the (benford) law: statistical fraud detection in campaign finance.‖ the american statistician, 2007, 61(3): 218-223. dwiputrianti, septiana. ―memahami strategi pemberantasan korupsi di indonesia.‖ jurnal ilmu administrasi, 2009 7(3): 241-253. ediwarman. ―paradoks penegkan hukum pidana dalam perspektif kriminologi di indonesia.‖ jurnal kriminologi indonesia, 2012 8(1) mei 2012: 38–051. erwin, muhammad dan busroh, firman freaddy. pengantar ilmu hukum, bandung: refika aditama, 2012. gunadi, eddi m. ―prevention and detection of fraud: a challenge to the internal auditors.‖ jurnal kriminologi indonesia, 2001 1(3): 4349. gusnardi. ―peran forensic accounting dalam pencegahan fraud.‖ jurnal pekbis (pendidikan ekonomi dan bisnis), 2012 4(1): 17-25. julaiyanti, nita. ―penyelenggaraan kegiatan koperasi simpan pinjam yang berpotensi tindak pidana penggelapan dan penipuan dalam pasal 374 juncto 378 kuhp.‖ jurnal ilmu hukum dan sosial, 2016 1(1): 733-734. kartono, kartini. patologi sosial. jakarta: grafindo persada, 2005. kuhap, indonesian criminal law procedure, kitab undang-undang hukum acara pidana. kuhp, indonesian criminal code, kitab undang-undang hukum pidana. mahoney, paul g. ―precaution costs and the law of fraud in impersonal markets.‖ virginia law review, 1992 78(3): 623-670. putra, yuniarti hidayah suyoso. ―praktik kecurangan akuntansi dalam perusahaan.‖ el muhasaba jurnal akuntansi, 2010 1(1): 47-61. law number 48 of 2009 concerning to judiciary (judiciary act), undangundang nomor 48 tahun 2009 tentang kehakiman. moeljatno. azas-azas hukum pidana. jakarta: rineka cipta, 2012. soeroso, r. pengantar ilmu hukum, jakarta:sinar grafika, 2005. soekanto, soerjono dan mustafa abdullah. sosiologi hukum dalam masyarakat, jakarta: rajawali, 2010. soekanto, soerjono. pengantar penelitian hukum, jakarta: ui press, 1992. soemitro, ronny hanitijo. metode penelitian hukum dan jurimetri. jakarta: ghalia indonesia, 1995. sudarto. hukum pidana. semarang: yayasan sudarto, 1992. sunggono, bambang. metode penelitian hukum, jakarta: raja grafindo, 2003. sugiyono. metode penelitian administrasi. bandung: alfabeta, 2009. jils (journal of indonesian legal studies) volume 6(1) 2021 83 available online at http://journal.unnes.ac.id/sju/index.php/jils research article the problems of horizontal and vertical political accountability of elected officials in indonesia muhtar said1 , ahsanul minan2 , muhammad nurul huda3 1, 2 department of law, universitas nahdlatul ulama indonesia (unusia), jakarta, indonesia 3 department of sociology, universitas nahdlatul ulama indonesia  said@unusia.ac.id submitted: dec 22, 2020 revised: february 26, 2021 accepted: april 25, 2021 abstract the accountability system for elected officials in indonesia is inherently linked with the electoral system that is applied to unravel the problem in the context of a symmetrical system of people's sovereignty. this article analyzes the dynamics of the current regulations on the accountability system of elected officials. however, this article would only focus on the accountability system for regional leaders (governor, mayor, and regent), regional legislators (dprd) human rights issue in various context: national and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 1, may 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils mailto:ma.syahrin@poltekim.ac.id https://orcid.org/0000-0003-2410-3058 https://orcid.org/0000-0003-0262-6341 https://orcid.org/0000-0002-9901-5397 84 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils and the senatorial regional delegates (dpd) in indonesia and the participation of constituencies in proposing a recall system. the purpose of this research is to construct an accountability mechanism for regional heads, dprd and dpd to their constituents that are appropriate and in line with the electoral system applied in indonesia. this research is expected to be a material for consideration for policy makers and the indonesian people in general in designing an accountability system for elected officials that is appropriate and in line with the applied electoral system. to do such, this article is based on a descriptive study. keywords: accountability, horizontal and vertical politics, direct democracy, elected officials, recall, indonesian election http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 85 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 83 table of contents ……………………………..….………. 85 introduction ………………………………….……………. 86 the legal dynamics of accountability system for regional head, dprd and dpd in indonesian legal system ………………………………. 89 a. the legal politics of regional head election ……………. 91 b. the performance monitoring and evaluation model for regional head, dprd and dpd ………………………..… 98 what measures the accountability of elected officials? …………………………………………. 100 a. the benchmarks of government accountability …..…… 100 b. duties and functions of regional head, dprd and dpd 104 c. the performance monitoring and evaluation model for regional head, dprd and dpd …………………………. 107 the role of constituencies on proposing recall ………………………………………………………..… 113 conclusion ………………………………………….…..…… 120 references ………………………………………………….… 121 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. how to cite: said, m., minan, a., & huda, m. n. (2021). problems of horizontal and vertical political accountability of elected officials in indonesia. jils (journal of indonesian legal studies), 6(1), 83-124. https://doi.org/10.15294/jils.v6i1.43403 http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/jils.v6i1.43403 86 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction the reform movement in 1999 has gradually opened the waves of consequential political regulation and democratization, as the antithesis of authoritarianism built by the suharto regime.1 the reform movement, among other things, triggered constitutional changes in the legal sector by changing the supremacy of the people’s consultative assembly (majelis permusyawaratan rakyat/mpr) to the supremacy of the constitution, and the recognition of human rights in a broader and more detailed manner.2 in the political sector, reforms for the filling of political offices were established in both the legislative institutions (people’s representative council/dpr, regional people’s representative council/dprd, and regional representative council/dpd) and the executive institutions (president and vice president) which included two major changes. first, all political offices are appointed through popular elections. second, the establishment of bicameral representative system within the mpr which consists of two houses; the lower multi-partisans house of people’s representative council (dewan perwakilan rakyat/dpr) which directly represents the population and the nonpartisan upper house of regional representative council (dewan perwakilan daerah) which represents the regions they delegated to. whereas the offices of regional heads (governor, mayor, and regents) are just directly elected through popular election since 2005. with the implementation of a direct election system by the people in this system of filling political positions, the sovereignty of 1 cornelis lay, pks’s policy behaviour: metamorfosa pks dalam kancah politik di indonesia. 2 monograph on politics and government 130, (2008). 2 saldi isra, perubahan lembaga legislatif dan eksekutif: prosepek dan tantangan. 49 unisia. no. 49/xxvi/iii/2003, (2003). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 87 available online at http://journal.unnes.ac.id/sju/index.php/jils the people is truly recognized as the people are directly involved in the process of determining the names of candidates for political office elected through elections (hereinafter referred to as elected officials). this is reflected in the voter voting mechanism by using the method of directly electing the candidate's name, while the method of determining the elected candidate uses the basis of obtaining the most votes, both in the presidential and vice-presidential elections, legislative elections (dpr, dpd and dprd), and regional head elections. this development in the voting system in elections marked the beginning of a complete shift in authority in elections. the general election for the dpd, the president and the regional head which implements the voting mechanism by directly electing the candidate's name, gives full authority to the voters as the holder of sovereignty in determining the candidate's victory. likewise, in the dpr and dprd elections (which previously relied on party power in determining elected candidates through serial numbers as a consequence of the implementation of a closed list proportional system) since the 2009 election have been using the voting mechanism directly to the candidate's name. in the elections for dpr and dprd members, political parties that previously played a major role in determining who has the right to occupy seats in representative institutions through determining the serial number of candidates now lose this privilege.3 this system change is considered as a breath of fresh air for increasing the degree of application of the principle of people's sovereignty, and at the same time it is believed that it will be better able to produce elected officials who are closer to the people. in 3 agus riwanto, korelasi pengaturan sistem pemilu proposional terbuka berbasis suara terbanyak dengan korupsi politik di indonesia, 1 yustisia jurnal hukum 90, 89-102 (2015). http://journal.unnes.ac.id/sju/index.php/jils 88 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils exercising their sovereignty during the election period, the people / voters can free themselves from the intervention of political parties by directly choosing the names of candidates for legislative members they want. problems are related to the dynamics of regulations regarding the accountability system of regional heads, dprd and dpd in the legal framework in indonesia, the involvement of constituents in proposing recall and the involvement of constituents in applying for recall. this research is legal research, namely research that is applied or applied specifically to legal science. the type used in this research is normative legal research,4 namely done by examining library materials or secondary data. however, normative legal research does not close the space for the use of interview data as triangulation or confirmation of secondary data in the form of legal materials used. meanwhile, in terms of its nature, this research is a descriptive study (descriptive research). descriptive research is a study to describe something in a certain space and time. in essence, descriptive study is an attempt to describe the variables being studied independently without associating with other variables that are comparing or connecting. in legal research, this descriptive research is very important to present the legal materials that exist appropriately, in which the prescriptions are compiled according to the materials. in the same context, from the formal point of view, this type of research is prescriptive research. research that aims to provide an overview or formulate problems in accordance with existing circumstances/facts.5 the nature of this research is in line with the prescriptive characteristics of legal science. as a prescriptive science, 4 bambang waluyo, penelitian hukum dalam praktek 21-25 (sinar grafika, jakarta 2002). 5 id., at. 23. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 89 available online at http://journal.unnes.ac.id/sju/index.php/jils law studies the aims of law, the values of justice, the validity of legal rules, legal concepts, and legal norms.6 this prescriptive nature is used in analyzing and testing the values contained in the law, but not only limited to the values in the positive jurisdiction, but also the values that underlie and encourage the birth of the law. with its descriptive nature and prescriptive form, this study can reveal what and how people's involvement should be in holding regional heads and dprd accountable in accordance with the electoral system applied in indonesia. the legal dynamics of accountability system for regional head, dprd and dpd in indonesian legal system joseph schumpeter gave an understanding of the theory of democracy as a means of controlling the aristocratic elite, giving a meaning that democracy is a movement to exercise control over the elites, "... a" tory democracy "movement and to reestablish elite control over austria-hungary's democratizing and fragmenting society. it began not as a general "theory of democracy" but as an argument contending that aristocratic elites, employing the right techniques, could curb democracy and national fragmentation and preserve traditional social and political hierarchies in austria-hungary".7 schumpeter's context in campaigning for democracy is directed at criticizing the austro-hungarian kingdom system which 6 peter mahmud marzuki, penelitian hukum 56 (kencana prenada media group, jakarta, 2006). 7 john medearis, joseph schumpeter’s two theories of democracy (harvard university press, london, 2013). http://journal.unnes.ac.id/sju/index.php/jils 90 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils is his own country. even so, schumpeter was a fan and supporter of the nazi government. apart from that, the meaning of democratic theory is about the existence of control, the state should not be held by several elites who have full power to run the country. democracy is not only a control room used by the community against the elites but can also be used as an entry point for the circulation of office. meanwhile, the mechanism to become a democracy as a circulation space for positions in many countries uses the election mechanism. where the position has a time limit after which an election will be held after the term of office will end. democracy is a very pleasant space for society because it provides an important position, where the position is as a voter (voter), people have the right to vote directly. when his position as a voter and the term of office of the person he has elected has ended, the voter also has the right not to vote for the candidate he has previously elected. this method is a form of control over the elites, so that the elites who are in office must really be able to act properly when they are going to continue their power. the above is an overview related to the importance of elections in a democratic country because democracy (as stated by schumpeter) is a movement to exercise control over the elite. indeed, in many countries that implement a democratic system, direct election is both a symbol and a measure of democracy itself. however, in the implementation of the elections each country has its own specialties. in indonesia, the technical implementation of elections is regulated by separate statutory regulations, even indonesia seems to have legislative regulations regarding dynamic elections because they keep up with the times, so that legal politics in election policy are always developing. it is necessary to know in advance that the political situation also has a major impact on changes or developments in the electoral legal system because law politics is http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 91 available online at http://journal.unnes.ac.id/sju/index.php/jils directly proportional to the situation at that time. padmo wajono gave his understanding of legal politics as a basic policy that determines the direction, form, and content of the law to be formed.8 meanwhile, satjipto rahardjo defined legal politics as an activity of choosing and the methods to be used to achieve certain social and legal goals in society.9 in the understanding of legal politics above, the thread can be drawn, the circumstances at that time will have a major influence on policy making. policies can be interpreted as regulations or decisions. changes after changes that have occurred to the regulations regarding elections provide an illustration behind the changes in the political law that affect these changes. in order to read the basis for changes related to regional head elections, dprd elections and dpd elections it is important to study the legal politics made of these regulations. a. the legal politics of regional head election the history of regional head elections cannot be separated from the laws that govern regional government. starting from the old order (post-independence), the regional government system was regulated in law no. 1/1957 on the principles of regional government. article 5 states that the regional government system consists of the regional legislative authority that is the regional people's representative council (dprd) and the “regional government council” which is a regional executive authority/office headed by the elected regional head. the division of regions according to this law is carried out by mentioning the levels, namely level i and level ii. the first level 8 padmo wahyono, indonesia negara berdasatkan atas hukum 24 (ghalia indonesia, jakarta, 1986). 9 satjipto raharjo, ilmu hukum 35 (citra aditya bakti, bandung, 2004). http://journal.unnes.ac.id/sju/index.php/jils 92 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils regions cover provinces (including special regions), while the second level regions are regencies and municipalities. if the area is not mentioned based on its level, it means that it is included in the category of a self-reliant area or a special area. in this law the regional head is elected by the local dprd. once elected and in office, the regional head automatically becomes the chair of the regional government council. meanwhile, the dprd representatives are members of the regional government council who are elected by the members of the regional government council itself. this is because the position of dprd was not equal and independent from the executive. but instead, the dprd was absorbed as a part of the regional government council and thus, below the regional head. after being elected, to become a regional head must first be approved by the central government (president or minister of home affairs). level 1 regional heads are authorized by the president and the minister of home affairs, or the authorities appointed by them to validate the regional heads from level ii (article 24). presidential regulation no. 6/1959 on regional government provides an explanation of the technicality of regional head elections in which a regional head is appointed from the candidates submitted by the dprd. the authority of dprd only proposes because in article 4 paragraph (3) it gives authority to the minister of home affairs and the president may determine the appointment of the regional head. the phrase "may" in the presidential regulation gives meaning when the minister of home affairs and the president does not want the dprd proposal, so it does not matter. this means that in regional head elections, the central government has a central role in choosing according to its wishes as shown and explained on table 1. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 93 available online at http://journal.unnes.ac.id/sju/index.php/jils table.1 resume of scheme of regional election based on law number 1 of 1957 type of election voter determination of candidate mayoral/ regency the dprd appoints candidate to the minister of home affairs the minister of home affairs may or may not affirm the candidate. if the latter, the central government may take over and redo the candidacy process. gubernatorial the dprd appoints candidate to the president via the minister of home affairs the president may or may not affirm the candidate. if the latter, the president can solely appoint his/her own pick to be a candidate. after the regional head is ratified by the president or the minister of home affairs, his duties as regional head are assisted by the daily government agency. where in the determination of the members of the agency, dprd is also given a share to "entrust" people because article 10 paragraph (2) states that "members of the daily government agency referred to in paragraph (1) of this article can be appointed as far as possible from the candidates submitted by the regional people's representative council concerned from members or outside the members of the council”. the regional government legal regime based on law no. 1 of 1957 ended after the issuance of law no. 18 of 1965 concerning the principles of regional government. this law clearly provides attribution authority to revoke law no.1 of 1957. law no. 18 of 1965 arranges regions with three levels, namely: 1) province and / or metropolitan special municipality as level i regions; 2) regency and / or municipality as level ii regions; and 3) districts and / or municipalities as level iii regions. http://journal.unnes.ac.id/sju/index.php/jils 94 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils the regional head election mechanism is also divided according to the aforementioned levels. the election for regional heads of level i is appointed by the president. the president elects the regional head who is nominated by the dprd of the region concerned, in which the dprd has at least 2 (two) and a maximum of 4 (four) candidates to the president. so, in the mechanism for electing the first level regional head, the president has the power to determine the candidate he chooses because when the president does not agree with the candidate presented by the dprd, the dprd is asked to propose another nomination. meanwhile, if the president does not want the second candidate, the president is given the authority to appoint a regional head outside of the candidacy (article 12). likewise with the regional head election mechanism level ii the president has room to intervene. the mechanism is the same, but what distinguishes it is that the candidates are submitted by the dprd to the minister of home affairs, then through the president's approval the minister of interior appoints the regional head. and if for the second time the candidate nominated by dprd is deemed no longer eligible, the president shall appoint a regional head outside of the candidacy. compared to the hierarchy of elections above, the election for regional heads at level iii (three), the authority to nominate someone to become a regional head remains with the dprd concerned but is submitted to the head of a level i region with the approval of the minister of home affairs. the difference occurs in the second stage of candidacy, if the candidate submitted by the dprd is not approved by the minister of home affairs, the regional head is required to choose his own candidate which is then submitted to the minister of home affairs. and if the candidate submitted by the head of the level i region is also not approved by the minister of home affairs, http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 95 available online at http://journal.unnes.ac.id/sju/index.php/jils the minister of home affairs has the authority to elect a regional head outside of the candidacy as shown on table 2. table.2 resume of scheme of election based on law number 16 of 1965 type of election voter determination of candidate regency/ mayoral the dprd (municipal/regent level) may appoint several candidates to the governor who is then passed to the central government via the minister of home affairs. if the minister does not approve the candidates, the governor may choose his/her own candidates. but if the candidates are not eligible, the minister is authorized to appoint his/her own candidates. gubernatorial the provincial dprd may appoint several candidates to the president. the president may or may not affirm the candidates. if the latter, the president may appoint his/her own candidates. elections for regional heads based on law no. 16 of 1965 are still centralized because the central government still holds greater authority. meanwhile, dprd which is positioned as the body conducting the selection cannot give a final decision because it still has to be submitted to the central government. after studying regional head elections based on law no. 16 of 1965 it was replaced by the regime of law no. 5 of 1974 concerning the principles of regional government. in the counseling of this law, it clearly states the principle of regional autonomy as the main principle for the formation of this law, so that it will also affect the regional government system. in the form of regional government in this law it is different from the previous law because the daily agency has been dissolved and replaced by the regional secretary. even http://journal.unnes.ac.id/sju/index.php/jils 96 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils though organizationally the regional government has changed, related to the regional head selection mechanism has not changed, it still positions dprd as the selection authority, even politically the dprd's authority in proposing regional head candidates is weakened because regional head is the prerogative of the president.10 the change in the mechanism for regional head elections is in law no. 22 of 1999 where the authority of the dprd is strengthened from only proposing to become a body that has the authority to elect and determine regional heads through elections. meanwhile, the president only endorsed it.11 the change in the mechanism for regional head elections in law no. 22 of 1999 was chosen and stipulated by the dprd to become elected by the local people when the issuance of law no. 32 of 2004. in article 24 paragraph (5) it is clearly stated that the regional head and deputy regional head are elected by the people in the region concerned. indeed, law no. 32 of 2004 has been amended by law no. 12 of 2008, but the essence related to the election of a regional head directly elected by the people has not changed because what has changed is only related to the mechanism of nomination requirements which involve a coalition of political parties. the law above is the last one that regulates regional head elections to be included in the substance of the law on regional government because related to regional head elections, it has specifically become a separate law. the emergence of law no. 22 of 2014 concerning the election of governors, regents and mayors wants to return the regional heads elected by the dprd. the governor is elected by the provincial dprd, while the regent and 10 article 15 law no 5 of 1974 concerning the basics of local government (pokok pokok pemerintah daerah). 11 article 40 law no 22 of 1999. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 97 available online at http://journal.unnes.ac.id/sju/index.php/jils mayor are elected by the regent/municipal dprd12. however, this law has not been enforced because of pressure from the community so that the president at that time made a government regulation in lieu of law no. 1 of 2015 which was later changed to law no. 10 of 2016 which restores regional head elections to be directly elected by the community (see table 3). table.3 brief history of regional head election mechanism legal basis election mechanism explanation law no.1/1957 1. dprd may nominate a regional head candidate to the president 2. the deputy regional head may be appointed by the office-elect dprd only conducts selection then a minimum of two and a maximum of 4 people to the president law no. 1/1965 the dprd may nominate a candidate for regional head to the president who has the sole power to affirm the proposal. if the president refuses the first and second candidate nominations, then the president can appoint his/her own candidates beyond dprd’s proposal. law no. 5/1974 the dprd may nominate a regional head candidate to the president. the president has the prerogative right to confirm or deny the nomination. law no. 22/1999 the dprd may nominate, elect, and appoint regional head through internal election process the president may only affirm the election result. law no. 32/2004 regional head is elected through a direct popular election by the people the president may only affirm the election result. law no. 2/2014 regional head is elected and appointed by the dprd 1. had a separate election mechanism from the previous regulation (law no. 32/2004) 12 article 3 law no 22 of 2014. http://journal.unnes.ac.id/sju/index.php/jils 98 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. had not been implemented yet due to public pressure until the central government issued the government regulation in-lieu of law no. 1/2015 the government regulation in-lieu of law no. 1/2015 and the subsequent law no. 10/2016 regional head is elected through a direct popular election by the people the appointment is done formally by the upper-rank official (i.e., the governorelect is appointed ceremonially by the president, a mayor-elect by the sitting governor, etc.) the electoral mechanism also influences the arrangements regarding the accountability system, since job reports are based on who voted for them. from the above, it can be seen that there are two parts, which are the period before direct election and after direct election. when the regional head has not been directly elected, the people cannot access reports from the regional head because the people's supervision is represented by representatives of the people in the dpr or in government agencies. however, if the regional head is elected directly, the people can participate in conducting an evaluation, at least a political evaluation in each period. b. the performance monitoring and evaluation model for regional head, dprd and dpd the mechanism for filling positions at the regional head of the dprd has changed several times but the monitoring mechanism has not changed much because the regional head and dprd are partners in running regional government within the framework of the unitary state of the republic of indonesia. where there is no separation of http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 99 available online at http://journal.unnes.ac.id/sju/index.php/jils powers in the regions. in regional government, the organizing elements are the regional head and the dprd so that the two institutions cannot be separated. the powers of these two institutions are separated because it is to create checks and balances in running government in the regions. the combination of the two creates good government. however, the separation of powers referred to is not unlike the power referred to by montesquieu, who gave the name trias politica (tri = three, as = axis/center, and politica = power).13 regional government does not apply trias politica because indonesia adheres to a unitary state known as a unitary state, where unitary is a single state (one country) which is monocentric (one centered), consisting of only one country, one government, one head of state, one legislature which applies to all regions in the territory of the country concerned.14 so in fact a regional legislature in a unitary state does not exist, but indonesia is a unitary state that prioritizes regional autonomy and in the context of implementing democracy and assisting the regional head in making regional regulations, the dprd is formed. after a person is elected in a direct election, he / she automatically becomes a state official so that the form of supervision also follows the rules of constitutional law where in the supervision of state officials who are members of regional governments (provinces, districts and cities) dprd and regional heads are partners so that their authority is (1) regional law and policy products, implementation of regional government administration and regional finance.15 so that the object of supervision is also taken from these three types. to be able to see the oversight mechanism of 13 m. agus santoso, peran dewan perwakilan rakyat daerah dalam menjalankan fungsi pengawasan, 4 jurnal hukum ius quia iustum 609, (2011). 14 budi sudjijono in santoso, id., 610. 15 center for international forestry research, sistem pengawasan terhadap penyelenggaraan pemerintah daerah kabupaten 2 (governance brief, 2004). http://journal.unnes.ac.id/sju/index.php/jils 100 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils these three types, it cannot rule out the hierarchical system in a unitary state, whatever it is the central government has great authority in conducting evaluations because indonesia is a unitary state so that in this case the nature of its supervision can be seen, where dprd has political oversight authority. regional heads while the central government has administrative oversight authority over regional heads who then also have the authority to provide guidance to regional heads. dprd political authority over regional heads and central government administrative authority over regional heads are written in the regional government act (law no. 2 of 2014). meanwhile, the oversight mechanism for dprd, institutionalwise, is the supervision that is carried out directly by the community because dprd members are the results of elections who have the task of being partners in implementing government in the regions. indeed, in this case the regional head has more duties than the dprd because apart from being directly elected by the community, he is also always supervised by the dprd politically and administratively by the officials above him. what measures the accountability of elected officials? a. the benchmarks of government accountability sumaryadi provides several definitions of government as an organization whose authority rules from a political unit, power that governs a public society, apparatus which is a government body that functions and exercises power, power to make laws and regulations to handle disputes and discuss administrative decisions and with http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 101 available online at http://journal.unnes.ac.id/sju/index.php/jils monopoly over legitimate power.16 furthermore, ndraha stated that government is an organ authorized to process public services and is obliged to process civil services for everyone through government agencies, so that each member of the community concerned receives it when needed, in accordance with the provisions (expectations) which are governed or the public.17 in the above explanation, the red thread can be drawn is that the government is a public body located in a country where its duties and functions are for the benefit of public services. then it was emphasized again by the existence of the information disclosure law (law no. 14 of 2008), where what is meant by a public agency is that its funding comes from the state revenue and expenditure budget (apbn) / regional revenue and expenditure budget (apbd). these agencies / institutions are established by the constitution and by laws and regulations that are domiciled in a country. and in carrying out its duties or management in making decisions and / or actions (both by bodies and officials) it is mandatory to use the guidelines of law number 30 of 2014 concerning government administration. therefore, the regional head, dprd, and dpd are included in the category of government because they are held by the constitution and laws and regulations, all of which comes from the apbn / apbd as a public agency whose operations are financed by funds originating from the public, all its actions must have a basis and benchmarks, so that it fulfills the principle of performance accountability, so that it can be accountable to the public. public administration accountability is an important issue in scientific and practical studies because it pertains to public services. in tax law, there 16 h. rahyuni, perubahan kedudukan kelurahan dari perangkat daerah menjadi perangkat kecamatan, 3 jurnal wedana 223, (april, 2017). 17 id., at. 223. http://journal.unnes.ac.id/sju/index.php/jils 102 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils is a theory of justification, namely the theory of interest, the relationship between citizens and the state is a relationship of interest in which the costs incurred by the state to carry out its duties are borne by citizens. therefore, the state is obliged to protect the interests of its citizens.18 public agencies are a part of the whole government body which is liable to be held accountable for its financial management. it cannot be denied that the actions or policies of public bodies or their officials are always related to the budget so that there must be clear accountability. to be able to fulfill this, the program and budget must be measured, this is where the characteristics of accountable program and budget management because the public places great importance on the implementation of policies, programs, projects, and routine activities carried out by government organs. the concept of accountability is also included as the main focus in new public management or what is commonly referred to as new public management (npm), for that accountability can be said to be the main differentiating factor between the study of old public administration and new public management. this is because classical administration is oriented to power alone (command), whereas in new public management government management agencies are more inclined towards public service orientation for the main purpose of the people's welfare.19 in order to ensure accountability for the performance of government agencies, a clear, precise, orderly and effective accountability system known as the performance accountability system for government institution (sistem akuntabilitas kinerja instansi pemerintah/sakip) was developed. sakip is then applied 18 muhtar said & m. hasan muaziz, pengantar hukum pajak indonesia 28 (thafa media, yogyakarta, 2020). 19 muhtar said, asas-asas hukum administrasi negara 33-35 (thafa media, yogyakarta, 2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 103 available online at http://journal.unnes.ac.id/sju/index.php/jils through the setting of performance targets accompanied by performance indicators that describe the success of government agencies. 20 sakip is an order, instrument and method of accountability which essentially includes the following stages:21 1. determining strategic planning, performance planning, and establishing work plans, including making a vision, mission, goals, objectives, policies, and programs. it is at this stage that government agencies produce a five-year medium-term work plan (rpjm / rpjmd) which is later derived into an annual performance plan (rkp / rkpd), budget plan (rka), performance agreement (pk), sop, and so on; 2. performance measurement, including measuring performance indicators, collecting performance data, comparing realization with work plans, previous year's performance, or comparing with other similar organizations that are the best in their fields; 3. performance reporting, in the form of making a government agency performance accountability report (lakip) with a predetermined standard report format (detailed with various indicators, evidence, and their achievements); and 4. the use of performance information for continuous improvement of the next agenda. the implementation of the accountability system through sakip is very important because it is an instrument in realizing the concept of good governance. the concept of sakip is a mandate from law number 17 of 2003 concerning state finance which contains a mandate to integrate financial and performance information in a system. this is consistent with public management characterized by 20 wahyudi in paulus julius & salsabila, akuntabilitas: menuju indonesia berkinerja (deputi bidang reformasi birokrasi akuntabilitas aparatur dan pengawasan, 2018). 21 id. http://journal.unnes.ac.id/sju/index.php/jils 104 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils good governance, namely public sector organizations to pay attention to value for money in carrying out their activities. where is the smallest input cost to achieve optimum output?22 the programs or actions of government agencies cannot be separated from publicly financed funding, the management methods must also be based on existing finances. as for the benchmarks for the management of government agencies based on law number 17 of 2003 concerning state finance which was then drafted through sakip. meanwhile, the regional head, dprd, dpd are government agencies that are clearly included in the organization of public bodies so that performance benchmarks can be measured using sakip itself. this is done so that the concept of good government can be achieved. this sakip can be applied to every institution, although each institution has different tasks and functions, however, program management cannot be separated from the management of state finances. b. duties and functions of regional head, dprd and dpd the regional head and the dprd are inseparable due to their vital roles as the organizer/operator/administrator of the regional government. 23 with the principles of decentralization and deconcentration, the governor has a key role as the leader of not only the provincial government but also its lesser regional government (municipalities and regencies). these two figures (the regional head and the dprd) have different duties and functions yet related. the 22 alwi hasyim batubara, konsep good governance dalam konsep otonomi daerah, 3 jurnal analisis administrasi dan kebijakan 4 (2006). 23 article 57 law no 23 of 2014 concerning local government (pemerintahan daerah). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 105 available online at http://journal.unnes.ac.id/sju/index.php/jils regional head has three main duties: addressing reports on regional administration, addressing accountability reports, and addressing brief reports on regional government’s performances (see table 4).24 table.4 resume of duties & functions of regional head, dprd, and dpd in indonesian legal system duties report details recipient addressing reports on regional administration achievement of regional governance performance and implementation of coadministration tasks (duties from central government to province / from province to regency / city) for the governor: to the president through the minister, once under the knowledge. performed once a year for the regent / mayor: to the minister through the governor (as the representative of the central government / decentralization). performed once a year note: submission is submitted no later than three months after the end of the fiscal year addressing accountability reports results of the administration of government affairs carried out by the regional government brief reports on regional government’s performance it contains the implementation of mandatory and optional affairs to the public through media that can be accessed by the public. the submission is concurrent with the submission of reports on the implementation of regional government 24 article 69 law no 23 of 2014 concerning local government (pemerintahan daerah) online at <https://peraturan.bpk.go.id/home/details/38685/uu-no-23tahun-2014> http://journal.unnes.ac.id/sju/index.php/jils 106 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils as an element of regional government, the dprd has legislative, budgeting, and supervisory functions.25 legislation is the function of making and approving regional regulations and the function of the budget is that it requires the design or entry of regional funds to also go through the dprd deliberations. then to carry out the supervisory function the dprd has the right to interpellation, questionnaire, and express opinions. the right of interpellation is the right of the dprd to request information from regional heads regarding policies that are important and strategic and have a broad impact on the life of society and the state. after the interpellation was carried out, it was found that there were several things that needed to be investigated, so the right to inquiry was carried out, namely an in-depth investigation to find out whether the regional head had taken an action that was contrary to the laws and regulations. after the right to inquiry is carried out, the dprd has the right to express an opinion related to an extraordinary event that has occurred in its area accompanied by a recommendation for resolution or follow-up on the implementation of the interpellation and inquiry rights. then it leads to the functions and duties of the dpd regulated in the 1945 constitution and the law on the mpr, dpr, dpd and dprd limited to regional autonomy, central and regional relations, the formation and expansion and amalgamation of regions, management of natural resources and other economic resources. as well as relating to the financial balance between central and regional. 25 law of the republic of indonesia number 17 of 2014 concerning the people's consultative assembly, the people's representative council, the regional representative council, and the regional people's representative council (undang-undang republik indonesia nomor 17 tahun 2014 tentang majelis permusyawaratan rakyat, dewan perwakilan rakyat, dewan perwakilan daerah, dan dewan perwakilan rakyat daerah). < https://parlemenindonesia.org/uu-md3/> http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 107 available online at http://journal.unnes.ac.id/sju/index.php/jils c. the performance monitoring and evaluation model for regional head, dprd and dpd there are three types of supervision, namely legal supervision, administrative supervision, and political supervision.26 however, at the peak point is the principle of contrarius actus, where this principle states that state administrative officials (tun) who issue tun decrees by themselves also have the authority to cancel them. meanwhile, cancellation or cancellation of a decision (beschikking) can still be tested through the state administrative court. the explanation above provides an illustration, basically there is a vertical accountability in which state administrative officials must be accountable to the official who gave them a decree making them official as state administrative officials. this means that the governor is appointed by a presidential decree, so he has the responsibility to the president even though through the minister, then the regent or mayor is appointed by the minister, so he must be accountable administratively to the minister. then the provincial dprd is appointed by the minister, the peak is in the minister, while regency / city dprd is appointed by the governor, so the revocation of the sk is on the governor while the dpd is appointed by the president so administratively the right to revoke its membership is the president. the existence of the dpd actually existed before the amendments to the 1945 constitution, but its name was not dpd but regional representatives. and one of the mpr members are delegates from the regions, so that the regional representatives are then referred to as regional representatives. then the way in which regional delegates become members of the mpr is different from others. this 26 see jumadi, penguatan fungsi pengawasan dewan perwakilan daerah republik indonesia dalam sistem bikameral parlemen, 6 jurisprudentie (2019). http://journal.unnes.ac.id/sju/index.php/jils 108 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils regional delegation is proposed by the regional people's representative council (hereinafter referred to as dprd) at the maximum of twice the predetermined quota. the president then appointed the regional delegation as a member of the mpr.27 in institutional work, the dpd is not like the dpr which has more authority, but its position in terms of program harmonization between the regions and the center is very important because the dpd represents the regional struggle while the dpr represents the people's struggle. although its position is very important, it does not have executive authority so that the dpd's authority is at the level of advocating regional interests to the center. from this, it can be seen that the benchmarks for the success of the dpd's performance are a matter of the entry of dpd ideas or ideas into the national legislation program and can even become a draft bill. because the dpd can only propose while the one who discusses and determines it is the dpr. the heavy burden of the dpd, which was not balanced with adequate duties and authorities, made it ambiguous. the basis of democracy which places the people as the holder of the highest sovereignty which is then carried out by various state institutions to realize people's welfare. the mechanisms for achieving democratic goals consist of direct and representative democracy. direct democracy involves involving the participation of all the people while representation by selecting candidates who will represent in representative institutions. therefore, in a representative democracy it is necessary to have a system and mechanism for the formation of representative bodies or institutions as representatives of the people's voice. this is in line with the formulation of democracy conveyed by cf strong, namely: "a system of government in which the majority of the grown members of a political community participates through a 27 khoirotin nisa, dewan perwakilan daerah republik indonesia: sistem perwakilan rakyat bikameral yang mandul, 4 jurnal wahana akademika 134, (2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 109 available online at http://journal.unnes.ac.id/sju/index.php/jils method of representation which secures that the government is ultimately responsible for its actions so that the majority”.28 with the burden of duty as regional representatives, the dpd must liaise with the dprd and the regional government. this is because the dpd is a regional representation. it should also be explained that the dpd is a non-party regional representative institution whose members are elected through individual elections. dpd will meet 3 components of society when in the area as a stakeholder, namely the community, dprd and local government. however, the problem is that there are no specific arrangements regarding the relationship and authority of the dpd ri in relation to the regional government. this is really risky, considering the dpd ri members have the obligation to absorb, collect, accommodate and follow up on the aspirations of the community and the region. formal communication is only carried out during the aspiration absorption period or work visits in the regions. in order to discuss the pattern of cooperation between the dpd ri and the regional government, on 29 april-1 may 2005 pah ii (now a committee ii) dpd ri held a workshop inviting the governors and the provincial dprd. through this workshop an agreement was reached on a formal mechanism for regional consultation. likewise, the dpd support pattern for the provincial government has also been agreed upon. with the opening of this space, each time a working visit is made, each member has brought a collective agreement which will then be followed up in the form of dpd support and programs. 28 c. f. strong, modern political constritutions: an introduction to the comparative study of their history and existing form 13-15 (london, sidgwick jackson, 1963). http://journal.unnes.ac.id/sju/index.php/jils 110 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils meanwhile, to find dprd benchmarks (both at the provincial and district/city levels) hifdzil alim29, an expert on constitutional law, said that dprd is measured by its legislative achievements, namely the government's priority programs taken from the musrembang screening, which are then raised to be the main issue in the regional legislation program, and from this regional legislation program can be measured, how many regional legislation programs (prolegda) and how many results are stipulated by the number of prolegda. if in the regional legislation program there are seven regional regulations that will be drafted but, in the end, only four regional regulations are successfully drafted, it can be said that the dprd's achievements are minimal. in regional government, the organizing elements are the regional head and the dprd so that the two institutions cannot be separated. the powers of these two institutions are separated because it is to create checks and balances in running government in the regions. the combination of the two creates good government. however, the separation of powers referred to is not unlike the power referred to by montesquieu, who gave the name trias politica (tri = three, as = axis / center, and politica = power).30 regional government does not apply trias politica because indonesia adheres to a unitary state known as a unitary state, where unitary is a single state (one country) which is monocentric (one centered), consisting of only one country, one government, one head of state, one legislature which applies to all regions in the territory of the country concerned.31 so in fact there is no regional legislature in a unitary state, but indonesia is a unitary state that prioritizes regional autonomy and in the framework of implementing democracy and assisting the regional head in making 29 personal interview, 15 august 2020. 30 santoso, supra note 13, at. 609. 31 id., at. 610. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 111 available online at http://journal.unnes.ac.id/sju/index.php/jils regional regulations, the dprd is formed. however, the supervision has a different mechanism. because supervision is divided into three types, namely legal supervision, administrative supervision, and political supervision as shown on table 5. table 5. types of supervision on local government concept in indonesian legal system institutions benchmarks types of supervision legal supervision political supervision administrative supervision regional head development planning forum → work programs/agenda → sakip 1. dprd through interpellation, questionnaire, then at its peak states the opinion given by the supreme court to make a decision 2. the dpd also participates in supervising matters concerning regional autonomy, central and regional relations, the formation and expansion and merger of regions, management of natural resources and other economic resources, as minister for governor level and governor at district / city level http://journal.unnes.ac.id/sju/index.php/jils 112 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils well as relating to the balance of central and regional finances. it is in the form of a proposal dprd development planning forum → regional legislation programs → regional regulations public society minister supervision for provincial dprd and governor for municipal/regent dprd dpd the success of advocacy on regional interests includes proposals being included in the national legislation program which then become a legislation draft or a bill. public society president the three types of institutions discussed above are political positions because they are directly elected by the community but have different duties and functions. if seen in the table above, tight supervision lies with the regional head because it has the authority to run regional programs and also to carry out assistance tasks from the center to the province or from province to district/city. this is natural because indonesia is a unitary state so that there is no pure division of power as in trias politica. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 113 available online at http://journal.unnes.ac.id/sju/index.php/jils the role of constituencies on proposing recall to bind or attract voters is a vision, mission, and program. meanwhile, it must be in accordance with the regional long term development plan (rencana pembangunan jangka panjang daerah/ rpjpd).32 the rpjpd is an elaboration of the vision, mission, policy direction and main targets of long-term regional development for 20 (twenty) years which is compiled based on the rpjpn or national long term development plan and regional spatial planning, the rpjpd is stipulated by regional regulations.33 from here it can then be drawn when the regional head when carrying out his duties and functions is not in accordance with what is in the rpjpd, there is the potential for the community to file a lawsuit through “tort complaint against the government” (onrechtmatige overheidsdaad) and also through citizen lawsuit (cls). these two actions can be used by the public or voters to conduct evaluations to regional heads other than the political route, namely elections. the point is, regional heads who are directly elected by the community can be evaluated directly by the community through two routes, namely politics and law. there have been many discussions related to evaluation through political channels, namely through elections. therefore, the research here prioritizes the evaluation of citizens of the candidates they choose through legal channels. evaluation through legal channels, namely through the onrechtmatige overheidsdaad lawsuit and also through the citizen lawsuit. as explained above, the legal route is a line of “tort suit against the administration” (onrechtmatige overheidsdaad) and citizen 32 article 24 (1) point a pkpu no 18 of 2019. 33 article 264 (2) law no 23 of 2014. http://journal.unnes.ac.id/sju/index.php/jils 114 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils lawsuits. before the discussion goes deeper, we will first describe the “tort suit against the administration” and also the citizen lawsuit. the term administration, in the development of tort law in indonesia, appeared after the supreme court decision no. 66 of 1955, in this decision it is called the government and according to the supreme court decree no. 838 in 1970 referred to as the ruler. meanwhile, according to the provisions of article 1 number 6 in conjunction with article 1 point 2 of law no. 5 of 1986 which was later amended by law no. 9 of 2004 concerning state administrative courts are referred to as agencies or officials who carry out government affairs based on statutory regulations. thus, the snare of actions against the law of the ruler does not only cover executive institutions under the president but also other agencies / officials who carry out government affairs (including bumn / bumd officials and so on), besides that it can also enter the realm of private bodies or positions. who carry out government affairs? such as hospitals, education and so on. initially, the term unlawful act arose when there was a hoogeraad decision regarding the lindenbaum vc cohen case. a little review about the case, namely that there are two printing companies, respectively owned by lindenbaum and cohen. one day cohen ordered employees of a printing company owned by lindenbaum to distribute data about its customers. knowing about this, lindenbaum sued cohen and the final verdict was that cohen was found guilty where the verdict of hoge raad (the supreme court of the netherlands) sentenced cohen to an unlawful act. the emergence of this case was due to the influence of doctrine on the court's decision that handled the case. with this, it can be understood that doctrine exerts great influence and pressure on the acceptance of a broad http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 115 available online at http://journal.unnes.ac.id/sju/index.php/jils understanding by the court of the meaning of an act of breaking the law (onrechtmatige daad).34 rosa agustina stated that something can be said to be a tort claim if it meets 4 criteria:35 the first is against the subjective rights of others. these subjective rights are divided into two types, namely individual subjective rights consisting of interests that have the highest value to the person concerned, direct recognition of the authority concerned by legislation, and a strong position of evidence in a case that may arise. meanwhile, subjective rights in society consist of absolute material rights such as property rights, personal rights such as the right to have integrity towards life and life, personal freedom, honor and good name, and special rights, such as the right to occupy a house by tenants. second, it is contrary to the legal obligations of the perpetrator as regulated in statutory regulations issued legally by an authorized institution and having an external binding capacity. third, contrary to decency. namely social norms in society as long as these norms are accepted by society in an unwritten form. fourth, contrary to propriety, thoroughness and prudence. actions that fall into this category include actions that harm others without proper interest, and useless actions that cause harm to others based on normal thinking need attention. after knowing about the act against the law, the next question is when the administration can be sued in civil terms because it has caused harm to a private person? there are 3 reasons that can be used as a basis for consideration for bringing a tort suit against the administration, namely:36 34 agus budi susilo, reformulasi perbuatan melanggar hukum oleh penguasa badan atau pejabat pemerintahan dalam konteks kompetensi absolut peradilan tata usaha negara, 2 jurnal hukum dan peradilan 294 (2013). 35 syukron salam, perkembangan doktrin perbuatan melawan hukum penguasa, 1 jurnal nurani hukum 36 (2018). 36 id., at. 37. http://journal.unnes.ac.id/sju/index.php/jils 116 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 1. the administration has violated a right 2. the administration's actions are contrary to their legal obligations 3. the administration is not careful in doing things, measured from the appropriateness and appropriateness of social interactions. then after understanding the elements of onrechtmatige overheidsdaad (tort suit against the administration), the discussion was continued with a lawsuit using the citizen lawsuit. it should be noted first that basically the citizen lawsuit or in indonesia is known as the citizen lawsuit against state officials, this does not come from the civil law tradition but is usually applied by common law countries, namely the united states, india, and australia. according to abdul fatah,37 the characteristics of the citizen lawsuit are, as follows: 1. defendants in the citizen lawsuit are state administrators, starting from the president and vice president as top leaders, ministers and continuing to state officials in fields deemed to have neglected to fulfill the rights of their citizens. 2. the act against the law argued in the lawsuit is the negligence of state administrators in fulfilling the rights of citizens. in this case, it must be explained what forms of negligence have been committed by the state and what rights of citizens have been failed to fulfill by the state. 3. the plaintiff is a citizen, acting on behalf of the citizen. the plaintiff in this case is sufficient to prove that he is an indonesian citizen. 4. citizen lawsuit does not require an option out notification after the lawsuit is registered as regulated in perma regarding class action. in practice in indonesia, which is based on regulations in several common law countries, it is enough for citizen lawsuits to provide notifications in the form of summons to state officials. 37 abdul fatah, gugatan warga negara sebagai mekanisme pemenuhan hak asasi manusia dan hak konstitutional warga negara, 28 jurnal yuridika 297 (2013). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 117 available online at http://journal.unnes.ac.id/sju/index.php/jils 5. the petitum in the lawsuit may not ask for material compensation, because the group of citizens who are suing is not a group that has been harmed materially and has the same losses and the same legal facts as the class action lawsuit. 6. the petitum citizen lawsuit must contain a request that the state issues a general regulatory policy (regeling) so that acts against the law in the form of negligence in fulfilling the rights of these citizens in the future do not occur again even so in indonesia there have been incidents against citizen lawsuit and some of these lawsuit were granted by the supreme court, as happened in case number 118/pdt.g/lh/2016/pnpik between the anti-smoke movement against the republic of indonesia cq the president of the republic indonesia, minister of environment and forestry of the republic of indonesia, minister of agrarian affairs and spatial planning / head of the national land agency, minister of health, governor of central kalimantan and the regional people's representative council of central kalimantan province. with the citizen lawsuit that was granted by the supreme court, it is a sign that the citizen lawsuit can also be applied in indonesia. nevertheless, the supreme court provided special conditions related to this lawsuit, namely the contents of the petitum that could be submitted in a citizen lawsuit, among others were:38 1. the petitum in the lawsuit may not ask for material compensation, because the people who sued are not groups that have suffered material losses and have the same losses and the same legal facts as the class action. 38 yustina niken sharaningtyas, gugatan warga negara (citizen lawsuit) dan justiciability pemenuhan hak atas lingkungan hidup yang baik dan sehat, 38 jurnal ilmiah fakultas hukum universitas udayana, kertha patrika 33, 31-48 (2016). http://journal.unnes.ac.id/sju/index.php/jils 118 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. the petitum citizen lawsuit must contain a request that the state issues a general regulatory policy so that acts against the law in the form of negligence in fulfilling the rights of these citizens in the future do not occur again. 3. petitum citizen lawsuits may not be in the form of cancellation of decisions by state administrators (state administration decisions) which are concrete, individual and final because this is the authority of the state administrative court (ptun). 4. petitum citizen lawsuits also cannot be in the form of cancellation of a law (uu) because it is the authority of the constitutional court. apart from that, citizen lawsuits also may not ask for the cancellation of statutory regulations under the act because this is the authority of the supreme court based on a judicial review. the two lawsuits (onrechtmatige overhiedsdaad and citizen lawsuit) can enter the world of election through the vision and mission that the candidate pair has presented. this is because the content of the vision and mission is an order from the kpu regulation (pkpu) where in the vision and mission the candidate pair must include the programs listed in the rpjpd. meanwhile pkpu and rpjpd are legal products promulgated by the state. so that it is binding for the pair of candidates who are elected and have been appointed as regional head officials. while other officials such as dprd / dpd can also be included in this lawsuit, it is because of this. dprd is an element of regional government administrators who jointly manage regional government together with regional heads. meanwhile, the dpd can be sued through onrechtmatige overheids daad if in carrying out its duties it is not in accordance with established procedures and can also be sued through citizen lawsuit as long as it is related to its authority as regulated in law. below will be a table regarding the differences between citizen lawsuits and onrechtmatige overhiedsdaad and citizen lawsuits (see table 7). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 119 available online at http://journal.unnes.ac.id/sju/index.php/jils table 7. comparison of onrechtmatige overhieds daad and citizen lawsuit onrechtmatige overhieds daad citizen lawsuit lawsuit is submitted at the state administrative court lawsuit is submitted at the district court acts as annulment acts as an order to create a new policy may include immaterial damage compensation in the suit does not allow immaterial damage compensation when observing the two claims, the defendant/respondent must have become a state official. and doing what the plaintiff/ applicant thinks is not in accordance with the mandate of the rules that have been set. thus, the action that can be sued is the one-sided action of state administrative officials, namely carried out unilaterally. so that the category is not included in the category of civil relations, so this will keep the opinion of political promises drawn into the realm of civil relations.39 if the act against the law of the ruler has several clear rules in its application in indonesia, it is different from the citizen lawsuit. this is where the weakness of citizen lawsuit, even though talking about citizen lawsuit means talking about the responsibility of state administrators for negligence in fulfilling the rights of citizens. whereas citizen lawsuit is the closest solution in terms of direct involvement of constituents with officials they choose through elections, this is because citizen lawsuit is the access of individual citizens to all citizens or the public interest (including environmental interests) in filing a lawsuit at court for use. demand the government / state to enforce the law that is required of it or to recover public losses that have occurred40. 39 muhtar said, supra note 19. 40 dhabi k. gumayra, panduan bantuan hukum di indonesia 382 (jakarta: aussaid, ylbhi, pshk & ialdf, 2006). http://journal.unnes.ac.id/sju/index.php/jils 120 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils in fact, the application of citizen lawsuit is effective if it is applied in indonesia with the aim of policing election results officials so that it is not easy to make promises. so that in making the vision and mission also based on rational basics and can be implemented when elected and officially become the official election results conclusion this research concluded and highlighted that the relationship between the responsibilities of officials from the election results starting with political promises (vision and mission). the problem in direct elections is that it seems that voters cannot recall the candidate they have chosen because when they become an official their accountability tends to be vertical. it is as if voters were not given room to recall. however, this study found room for voters to be able to recall officials from the election results, namely through a tort suit against the administration (onrechtmatige overheidsdaad) and citizen lawsuit. however, it is also debatable whether 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(2011). peran dewan perwakilan rakyat daerah dalam menjalankan fungsi pengawasan. jurnal hukum ius quia iustum, 18(4), 604-620. https://doi.org/10.20885/iustum.vol18.iss4.art7 sharaningtyas, y. n. (2016). gugatan warga negara (citizen lawsuit) dan justiciability pemenuhan hak atas lingkungan hidup yang baik dan sehat. jurnal ilmiah fakultas hukum universitas udayana, kertha patrika, 38(1), 31-48. strong, c. f. (1963). modern political constritutions: an introduction to the comparative study of their history and existing form. london: sidgwick jackson. susilo, a. b. (2013). reformulasi perbuatan melanggar hukum oleh badan atau pejabat pemerintahan dalam konteks kompetensi absolut peradilan tata usaha negara. jurnal hukum dan peradilan, 2(2), 291-308. http://dx.doi.org/10.25216/jhp.2.2.2013.291-308 wahyono, p. (1986). indonesia negara berdasarkan atas hukum. jakarta: ghalia indonesia. waluyo, b. (2002). penelitian hukum dalam praktek. jakarta: sinar grafika. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.20885/iustum.vol18.iss4.art7 http://dx.doi.org/10.25216/jhp.2.2.2013.291-308 124 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils "politics is the art of looking for trouble, finding it whether it exists or not, diagnosing it incorrectly, and applying the wrong remedy.” ernest benn about authors muchtar said is a lecturer at universitas nahdlatul ulama indonesia (unisia) jakarta. his area of research interest is concerning constitutional law, administrative law, and election law. some his works have been published on several journals such as dasun rembang: tenggelam dan bangkit (al wasath: jurnal ilmu hukum, 2021), transparansi keuangan dalam partai politik (indonesian state law review, 2020), and dampak ketiadaan adversarial system dalam hukum acara dkpp: studi anotasi putusan nomor 16-pke-dkpp/i/2019 (jurnal etika dan pemilu, 2019). ahsanul minan is lecturer at department of constitutional law, universitas nahdlatul ulama indonesia (unisia) jakarta, indonesia. his area of research interest concerning constitutional law, election law, law and politics. some of his recent publications such as quovadis partisipasi pengawasan pemilu (jurnal pengawasan pemilu, 2020), evaluasi pemilu 2019: problem proporsionalitas hasil pemilu 2019 (jurnal pengawasan pemilu, 2019), and transparansi dan akuntabilitas dana kampanye pemilu: ius constituendum dalam mewujudkan pemilihan umum yang berintegritas (jurnal pemilu dan demokrasi, 2012). muhammad nurul huda is lecturer at sociology department, universitas nahdlatul ulama indonesia (unisia) jakarta, indonesia. his area of research interest concerning sociology studies. some of his recent publications such as the akhlak revolution: a triadic interplay between piety, islamization, and neoliberal ethics (komunitas: international journal of indonesian society and culture, 2020), and realisme kritis roy bhaskar:‘pelayan’filosofis untuk ilmu-ilmu sosial emansipatoris (muqoddima jurnal pemikiran dan riset sosiologi, 2020). http://journal.unnes.ac.id/sju/index.php/jils https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=_ymvaasaaaaj&sortby=pubdate&citation_for_view=_ymvaasaaaaj:dhfuzr0502qc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=_ymvaasaaaaj&sortby=pubdate&citation_for_view=_ymvaasaaaaj:dhfuzr0502qc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=_ymvaasaaaaj&sortby=pubdate&citation_for_view=_ymvaasaaaaj:wp0gir-vw9mc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=_ymvaasaaaaj&sortby=pubdate&citation_for_view=_ymvaasaaaaj:aqlvkmm33-oc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=_ymvaasaaaaj&sortby=pubdate&citation_for_view=_ymvaasaaaaj:aqlvkmm33-oc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=fhagjakaaaaj&sortby=pubdate&citation_for_view=fhagjakaaaaj:_qo2xovztnwc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=fhagjakaaaaj&sortby=pubdate&citation_for_view=fhagjakaaaaj:_qo2xovztnwc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=fhagjakaaaaj&sortby=pubdate&citation_for_view=fhagjakaaaaj:hfor9npywt4c https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=fhagjakaaaaj&sortby=pubdate&citation_for_view=fhagjakaaaaj:hfor9npywt4c https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=fhagjakaaaaj&sortby=pubdate&citation_for_view=fhagjakaaaaj:kndyix-mwkoc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=fhagjakaaaaj&sortby=pubdate&citation_for_view=fhagjakaaaaj:kndyix-mwkoc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=fhagjakaaaaj&sortby=pubdate&citation_for_view=fhagjakaaaaj:kndyix-mwkoc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=4mhfsjkaaaaj&sortby=pubdate&citation_for_view=4mhfsjkaaaaj:aqlvkmm33-oc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=4mhfsjkaaaaj&sortby=pubdate&citation_for_view=4mhfsjkaaaaj:aqlvkmm33-oc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=4mhfsjkaaaaj&sortby=pubdate&citation_for_view=4mhfsjkaaaaj:dhfuzr0502qc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=4mhfsjkaaaaj&sortby=pubdate&citation_for_view=4mhfsjkaaaaj:dhfuzr0502qc jils (journal of indonesian legal studies) volume 6(1) 2021 53 available online at http://journal.unnes.ac.id/sju/index.php/jils research article the principle of non-refoulement as jus cogens: history, apllication, and exception in international refugee law m. alvi syahrin immigration polytechnic, jakarta, indonesia  ma.syahrin@poltekim.ac.id submitted: dec 18, 2020 revised: february 16, 2021 accepted: april 15, 2021 abstract the existence of the principle of non-refoulement is a necessity and has been institutionalized in the various international legal instruments such as conventions, declarations and in customary international law. non-refoulement principle is a fundamental concept and considered as the backbone for the entire international refugee legal system. that principle is an international legal norm that has been recognized and affirmed by the international community in multilateral international conventions and other relevant international legal instruments. this principle is very basic in the human rights issue in various context: national and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 1, may 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils mailto:ma.syahrin@poltekim.ac.id https://orcid.org/0000-0002-0292-9898 54 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils international protection system for refugees and asylum seekers and cannot be distracted by states in international relations. international organizations also recognize and apply the principle of nonrefoulement consistently. the consequence is that states, both individually and collectively, must not violate this principle. based on legal procedures, a country can take different actions with the obligation to implement the non-refoulement principle. keywords: non-refoulement; jus cogens; refugee http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 55 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 53 table of contents ……………………………..….………. 55 introduction ………………………………….……………. 55 the development of non-refoulement principle ………………………………………………………. 59 the non-refoulement principle as jus cogens .. 67 the justifications and exceptions of nonrefoulement principle ………………………………… 75 conclusion ………………………………………….…..…… 80 references ………………………………………………….… 81 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. how to cite: syahrin, m. a. (2021). the principle of non-refoulement as jus cogens: history, application, and exception in international refugee law. jils (journal of indonesian legal studies), 6(1), 53-82. https://doi.org/10.15294/jils.v6i1.43350 introduction one of the fundamental concepts in the international protection system for refugees and asylum seekers is the principle http://journal.unnes.ac.id/sju/index.php/jils 56 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils of non-refoulement in international refugee law. the term nonrefoulement comes from the french word refouler which means to return or send back. in the system of international refugee law, the existence of the principle of non-refoulement has been institutionalized in the various international legal instruments such as conventions, declarations, and in customary international law.1 meaning the main principle of non-refoulement is there should be no country to return or send the refugees and/or asylum seekers to a territory where the life and safety of refugees or asylum seekers would be threatened, unless the presence of refugees or seekers of asylum are really pose a problem of order and security for the country concerned. the non-refoulement principle is not the same as expulsion or forced relocation. deportation happens when a foreigner is found guilty of committing an act contrary to the local state's interests or becomes a suspect in in a criminal act and escapes from the legal process. therefore, this principle must be distinguished from expulsion, deportation, or forced removal.2 expulsion or deportation occurs when a foreign national is found guilty of committing an act contrary to the interests of the local state or is a suspect in a criminal offense in a state. the non-refoulement principle is the prohibition for country to return or send a refugee to an area where he will face persecution or life-threatening persecution for reasons related to race, religion, nationality, group membership, social, or because of his political beliefs. this principle is the backbone of the international protection 1 elena fiddian-qasmiyeh et al., the international law of refugee protection, in the oxford handbook of refugee and forced migration studies (2014). 2 elihu lauterpacht & daniel bethlehem, the scope and content of the principle of nonrefoulement: opinion, in refugee protection in international law: unhcr’s global consultations on international protection (2003). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 57 available online at http://journal.unnes.ac.id/sju/index.php/jils system for refugees and asylum seekers institutionalized in various international and national legal instruments.3 the presence of this principle in the legal system for the protection of refugees and asylum seekers is also very important in the wider sense of the protection of human rights. most people in the international law arena, whether states, nongovernmental organizations, or analysts, see the concept of nonrefoulement as central to refugee law. it has played a central role in how states deal with refugees and asylum-seekers since it was articulated in the refugee convention in 1951. but what exactly does the theory involve? it is described by a refugee law expert as the concept that no refugee should be returned to any place where he or she is likely to face persecution or torture. to explain, a hypothetical example may be helpful. the theory forbids the government of state a, at its most basic level, from returning refugees from state b to state b, where there is a legitimate concern that they might be at risk if they are returned. there are many facets of this concept in the discussion, including whether a refugee needs to be located on the territory of state a or may merely attempt to join, as well as what criterion should be used to assess what risk warrants the refugee not to be returned. this idea did not exist in international law prior to the 1930s. it is important to look at the conditions and factors underlying its production to understand the theory. the idea that it was morally wrong to return refugees to places where they would obviously be in danger was sometimes discussed in agreements or laws by states during the first half of this century or was apparent in the practice of some states. 3 james c hathaway & thomas gammeltoft-hansen, non-refoulement in a world of cooperative deterrence, columbia j. transnatl. law (2015). http://journal.unnes.ac.id/sju/index.php/jils 58 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils while it had been enshrined in a uk law by 1905 that refugees should be permitted into the country with a fear of persecution for political or religious reasons, it was not until later that the concept of non-refoulement of such individuals became generally accepted. the 1933 convention relating to the status of refugees, which was however ratified by only few nations, was first articulated in international law.4 the huge refugee flows created by the ruins of the second world war provided the impetus for a thorough review of the refugee laws. before this time, states had been very aware of the degree to which consent to refugee-related laws, in particular international rules, would affect their sovereign right to decide who was permitted to live within their borders. while many seemed to have agreed that there was a moral obligation to accept and not return refugees, this was done mainly on an ad hoc basis. nevertheless, in the first few years of its existence, the united nations demonstrated its concern about the refugee crisis. in 1946, a resolution was passed by the general assembly specifying that refugees could not be returned if they had 'true objections. this issue, primarily caused by the large number of refugees in europe after the war, ultimately led to the drafting of the 1951 united nations convention on the status of refugees. basically, the principle of non-refoulement relates to the principle of protection in human rights law, especially in relation to the protection of individuals from actions that can be categorized as torture and/or punishment that is harsh and degrading and inhuman. this fundamental principle for the entire international refugee legal system has been institutionalized in article 33 of the 1951 convention on the status of refugees. 4 fiddian-qasmiyeh et al., supra note 1. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 59 available online at http://journal.unnes.ac.id/sju/index.php/jils many conventions, most especially the 1951 refugee convention, but also the convention against torture and the international convention for the protection of all persons from enforced misapprehension, specifically set out the concept of nonrefoulement. in addition, treaties on human rights are commonly interpreted as banning refoulement. this is protected by the iccpr, for example, and by regional human rights treaties. in other words, as part of the positive commitments inherent in the responsibility to defend against violations of human rights, states are obliged to carry out a risk assessment and not to return citizens to whom they would face severe violations of human rights upon return. moreover, it has been persuasively argued that such an obligation is also found in international humanitarian law, based on the obligation laid down in article 1 of the geneva convention. the non-refoulement concept reflected in a wide variety of treaties has the same underlying center, albeit articulated in slightly different terms through various treaties. the refugee convention forbids refoulement where, because of race, religion, ethnicity, membership of a particular social group or political opinion, a refugee's 'life or freedom will be threatened,' with regional instruments containing similar prohibitions. the development of nonrefoulement principle in international refugee legal system, the principle of nonrefoulement only applies to refugees and asylum seekers. in relation to international protection for refugees, this principle is considered the most basic principle for the entire international refugee law system. the international community has institutionalized and http://journal.unnes.ac.id/sju/index.php/jils 60 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils affirmed this principle in the 1951 convention in article 33. the provisions in article 33 of the 1951 convention which contain the principle of non-refoulement are provisions in the refugee convention which cannot be reserved. this is confirmed in article 42 of the convention. the principle of non-refoulement is a concept of prohibiting or not allowing a country to return or send a refugee or asylum seeker to an area where he will face persecution or torture that endangers his life for reasons related to race, religion, nationality, membership in certain social groups or political beliefs. in contemporary (international) refugee law discourse, as found in the writings of sir elihu lauterpacht and daniel bethlehem, this principle is often put forward as the fundamental concept of refugee law. before the 1951 convention was accepted by the international community, this principle had also been affirmed in the 1933 convention on the status of international refugees. this principle was basically related to the principle of protection in human rights law, especially in relation to the prohibition of acts of torture and/or harsh and degrading punishment. human dignity.5 the implementation of it in practice is also extended to asylum seekers. support and adherence to the principle of non-refoulement by countries and relevant international organizations has emphasized the importance of this principle of non-refoulement in the international legal system in general. furthermore, the main content of this non-refoulement principle was confirmed by the un general assembly in the 1967 declaration on territorial asylum which was approved by acclamation. article 3 of the declaration were accepted by the assembly of the united nations general december 14, 1967, confirms that every person has the right to seek asylum may not be 5 jean allain, the jus cogens nature of non-refoulement, int. j. refug. law (2001). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 61 available online at http://journal.unnes.ac.id/sju/index.php/jils expelled or denied entry to the country where he applied for asylum.6 this asylum seeker may not be returned to any country where he or she faces the risk of persecution (persecution). in the expert roundtable held by unhcr, several conclusions that were relevant to the principle of non-refoulement were agreed. the conclusions produced are:7 1. the non-refoulement principle is a basic concept that recognized in international customary law; 2. this principle extends to any intervention by the state that may give rise to the return of asylum seekers or refugees to border areas where their lives and freedoms are endangered, or to areas where they are at risk of persecution, including interception and refusal. 3. this principle applies in circumstances of mass migration. it takes imaginative steps to deal with the unique problems that occur in mass displacement circumstances. 4. based on the legal theory of state accountability, the state's right to take measures that can lead to refoulement is decided. a consideration that must take precedence over international duty to behave in compliance with international obligations; 5. this principle has exceptions stipulated in the convention. these exceptions must be interpreted and implemented very strictly. this exception must be made when recognizing the opportunity for a rescue to be carried out and as a last step that the state should take. refoulement should not, without exception, be carried out in cases involving acts of torture. 6 maría teresa gil-bazo, refugee protection under international human rights law: from non-refoulement to residence and citizenship, refug. surv. q. (2015). 7 sigit riyanto, prinsip non-refoulement dan relevansinya dalam sistem hukum internasional, 22 mimb. huk. fak. huk. univ. gadjah mada 434–449 (2010). http://journal.unnes.ac.id/sju/index.php/jils 62 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils in its development, the principle of non-refoulement is also reflected in the practice of states within the framework of modern international relations. the opinion of international legal experts as formulated in the conclusions of the unhcr expert roundtable and the declaration. this part is strong evidence that the principle of nonrefoulement is supported by legal opinion and is reflected in the practice of states in modern international relations.8 the existence of opinions and practices of countries regarding the acceptance of this principle has been accepted as customary international law. since its appearance in the 1933 convention relating to the international status of refugees, non-refoulement has been a guiding principle in refugee law. in complementary fields of international law, in human rights treaties and in international customary law, nonrefoulement has also arisen. non-refoulement effectively guarantees that a government does not expel a refugee from its state-territory or borders and 'refoule' that person to a location (country of origin or otherwise) where he or she may be subjected to torture or persecution. the prohibition of repossession is connected to the total prohibition of torture, but where the expected mistreatment does not require especially severe acts of torture, there is controversy as to the degree of protection provided by the various instruments in the field of human rights. several writers attest to the non-refoulement status of jus cogens as a corollary of the peremptory status gained by the torture prohibition. the concept of jus cogens was codified in article 53 of the vienna convention on the law of treaties (1969), which states that 'a treaty shall be null and void if it clashes with a provisional standard of general international law at the time of its conclusion.' the definition of jus cogens by christos rozakis will underpin the philosophical 8 hathaway and gammeltoft-hansen, supra note 3. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 63 available online at http://journal.unnes.ac.id/sju/index.php/jils structure of this essay,' there are general rules of law that preclude the conclusion of unique contractual agreements that clash with them by actually banning derogation from their substance and by threatening any attempt to violate the prohibition with invalidity. typically, these laws are called jus cogens. international customary law is often commonly known to be the principle of non-refoulement, which implies that all nations, whether or not they are a party to the human rights and/or refugee treaties incorporating the refoulement ban, are obligated not to return or extradite any individual to a country where the existence or welfare of that person will be seriously jeopardized. the international community of states reached consensus in 1982, prior to the ratification of the convention against torture, that the ban on torture was a provision of customary international law. non-refoulement may be claimed to be a central component of the customary ban on torture and barbaric, inhuman and degrading treatment or punishment. does this sufficiently establish the normative status of non-refoulement in international law, with 90% of the world's sovereign states party to a treaty which prohibits refoulement in some form or form? the presence of this concept in key international instructions is also a testament to consistent practice and a clear opinion juris that leads to the establishment of a customary standard.9 by looking beyond european and un-based human rights treaties, and reviewing non-binding soft instruments and resolutions provided by authoritative bodies interpreting developing international customary law, the following discussion will seek to determine the customary normative status gained by the nonrefoulement principle. 9 thomas gammeltoft-hansen & james c. hathaway, non-refoulement in a world of cooperative deterrence, columbia journal of transnational law (2015). http://journal.unnes.ac.id/sju/index.php/jils 64 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils the office of the united nations high commissioner for refugees asserts that the principle of non-refoulement has become a norm in customary international law on the basis of two sources of evidence, firstly, state practice with respect to non-refoulement and, secondly, opinion juris of the principle. although the stance of the unhcr executive committee on the normative existence and the position of non-refoulement in international customary law is generally in line with the prevailing legal doctrines, the concept is stated in the 1982 excom resolution. the 'progressive acquisition of the character of a peremptory rule of international law' of nonrefoulement was less than convincing. if non-refoulement had steadily gained peremptory status in 1982, one would have imagined that the theory would be held in the highest position of the normative hierarchy a quarter of a century later. the principle of non-refoulement has even appeared and been practiced by countries since the first world war (1914-1918). this principle is also recognized in international instruments such as the 1933 convention relating to the international status of refugees, 1949 geneva convention on the protection of civilian persons, 1984 convention against torture, cruel, inhuman or degrading treatment of punishment.10 in fact, the principle of non-refoulement is also formulated in declarations and resolutions adopted by regional international organizations as follows:11 10 m alvi syahrin, h budi artono & f santiago, legal impacts of the existence of refugees and asylum seekers in indonesia, int. j. civ. eng. technol. (2018), http://www.scopus.com/inward/record.url?eid=2-s2.085047853115&partnerid=mn8toars. 11 riyanto, supra note 7. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 65 available online at http://journal.unnes.ac.id/sju/index.php/jils 1. 1969 african unity organization convention in 1969 the organization of african unity convention governing the specific aspects of refugees (hereinafter: oau convention 1969), article ii paragraph (3) states: no person shall be subjected (by a member state) to measures such as rejection at the frontier, return or expansion, which would compel him to return or remain in a territory where his life, physical integrity or liberty would be thr eatened (for the reasons set out in article i, paragraphs 1 and 2). this convention addresses specific refugee issues in the african region. the conflicts that accompanied the end of colonialism in africa have resulted in a series of displacement events on a large scale on the continent. removal of the people in the region of the african continent is encouraging not only designed and acceptance of the protocol year 1967, but also design the 1969 convention governing the specific problems relating to refugee’s companies in africa in the year 1969. by asserting that the 1951 convention on is an instrument basic and universal respect to the status of refugees. the 1969 convention is the only regional international treaties that have legally binding force. it should also be noted that one of the most important parts of the 1969 convention is its definition of refugees. the 1969 convention follows the definition of refugees contained in the 1951 convention, but also includes a more objective basis for consideration, namely: every person forced to leave his country because of external aggression, occupation, foreign domination, or events seriously disturbing public order in either part or the whole of his country of origin or nationality. it means that persons who have fled the territory of their country as a result of civil unrest, widespread violence and warfare have the http://journal.unnes.ac.id/sju/index.php/jils 66 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils right to claim refugee status on the territory of countries that are parties to the 1969 convention regardless of whether they have fear of oppression or persecution that is truly based. in addition to expanding the definition of refugees, the 1969 convention also calls on member states to provide asylum or protection, affirms the principle of non-refoulement, and institutionalizes voluntary repatriation for refugees. 2. 1969 american convention on human rights in the 1969 american convention on human rights, article 22 states: in no case may an alien be deported or returned to a country, regardless of whether or not it is his country of ori gin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions. 3. 1966 asian african legal consultative committee this committee has adopted a declaration which is also known as the bangkok principles. the declaration adopted by the committee in it also recognizes the concept of non-refoulement to provide international protection for people seeking asylum. 4. 1984 cartagena declaration in 1984, a colloquium of government representatives and leading legal experts from latin america was held in cartagena, colombia to discuss international protection of refugees in the region. this meeting agreed on an instrument which later became known as the 1984 cartagena declaration. this declaration recommends that the definition of a refugee in the 1951 convention was expanded to include also people who have fled their country because their lives, safety or freedom are threatened because of the violence that http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 67 available online at http://journal.unnes.ac.id/sju/index.php/jils is widespread, the aggression of foreign, internal conflict, human rights abuses, or other circumstances that destroy public order. although the 1984 cartagena declaration is not legally binding on countries. the definition is agreed by most south american countries for practical reasons. this term has also been adopted by some countries into their national regulation. the 1984 cartagena declaration not only accepts and recognizes the principle of nonrefoulement as the foundation for international protection of refugees, but also recognizes that the principle of non-refoulement is a principle categorized as jus cogens in international law. the non-refoulement principle as jus cogens in the international legal framework, a legal provision agreed and acknowledged by the international community is the definition of jus cogens, or what is sometimes referred to as a peremptory rule in international law, and such legal rules cannot be infringed. in classical international legal discourse, it can be argued that the jus cogens concept has been introduced by several international jurist such as hugo grotius (1853-1645) and de vattel in the xvi century. in 1953, hersch lauterpacht in his capacity as a special rapporteur of the international law commission also incorporated the concept of jus cogens into the draft convention on international treaties as a principle in international legal order. the definition of jus cogens was eventually embraced by the international community and institutionalized in the 1969 vienna convention on the law of treaties.12 12 naoko hashimoto, refugee resettlement as an alternative to asylum, 37 refug. surv. q. (2018). http://journal.unnes.ac.id/sju/index.php/jils 68 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils acceptance of jus cogens in the modern international law institutions as reflected in the vienna convention on the law of treaties 1969 shows that the international legal system, the international community recognizes two kinds of characters legal norms are applicable, namely jus dispositivum and jus cogens. jus dispositivum is a term of international law in which the state as a member of the international community based on the situation and the conditions specified it is possible to deviate or modify the provisions of the law. on the other hand, jus cogens or peremptory norm of international law is a standard of international law that the international community has acknowledged and embraced which cannot be deviated, modified, and/or defeated by other legal provisions. jus cogens is categorized as a legal norm that has a higher position than the jus dispositivum norm. states as members of the international community, for whatever reason, cannot deviate from international legal norms which have the type of jus cogens. jus cogens is considered as an essential norm for the international legal system, so that violations of this essential norm can threaten the continuity of the international legal system that applies in the international community.13 the institutionalization of coercive legal norms into the 1969 vienna convention is an acknowledgment and affirmation of the international community, especially states, of the fact that in the international legal system, states cannot formulate deviant rules with jus cogens, both in relation to other countries and in their respective national legal frameworks. in this regard, it should also be noted that the application of jus cogens is not limited 13 sigit riyanto, kedaulatan negara dalam kerangka hukum internasional kontemporer, yust. j. huk. (2012). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 69 available online at http://journal.unnes.ac.id/sju/index.php/jils to the 1969 vienna convention but applies to the entire international legal system in general. the coercive and irreversible nature of jus cogens is a principle that applies to any state action as a member of the international community within the framework of international law. with so jus cogens limit the interaction of the state within the framework of the system internationally. the discourse that needs to be raised is how to identify and evaluate the principle of nonrefoulement as a jus cogens norm in international law.14 to assess whether the principle of non-refoulement is jus cogens, it must be used a reference to the provisions exist in article 53 of the vienna convention of 1969. based on the formulation of article 53 that, then the conditions that must be met as a term of jus cogens are: (1) the non-refoulement principle is accepted and recognized by the international community; (2) the non-refoulement principle is a norm that cannot be deviated. the qualification of the non-refoulement principle as a jus cogens norm in international law can be judged based on the following facts: first, the principle of non-refoulement is a norm of international law institutionalized in multilateral international conventions, namely in article 33 of the 1951 convention. second, customary international law has also been the non-refoulement principle, followed by countries long before the principle was established in international mechanism. countries which practice the nonrefoulement principle are not restricted to countries which are parties to the 1951 convention and to the protocol of 1967. in fact, other countries which are not parties to the 1951 convention also adhere to the principle of non-refoulement. third, the principle of non 14 erin collins, repatriation, refoulement, repair, dev. change (2016). http://journal.unnes.ac.id/sju/index.php/jils 70 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils refoulement has also been reaffirmed and even explicitly recognized as jus cogens. the reaffirmation of the principle of nonrefoulement in legal instruments accepted by the several international communities. fourth, acceptance and affirmation of the principle of non-refoulement in the international protection system for refugees and asylum seekers can be found in the practice implemented by the relevant international organization, namely unhcr. this can be found in decisions issued by the executive committee of the program of the unhcr. these decisions of the unhcr executive committee reflect the consensus of countries in their capacity to provide opinion and advice on aspects of international protection. furthermore, it should also be noted that the existence of the principle of non-refoulement and its qualification as jus cogens is supported by the opinion of international legal experts. the opinion of international legal experts regarding the existence of this nonrefoulement principle is a strong and factual argument that the nonrefoulement principle as one of the sources of international law which has the legitimation of jus cogens is recognized and supported by the opinion of international legal experts.15 the opinion of international legal experts proves the existence of the principle of nonrefoulement as a source of international law in accordance with the formulation of sources of international law as stated in the statute of the international court of justice. in the practice, the violations of the principle of nonrefoulement have been found. this was also pointed out by unhcr, that violations that occur against refugee rights that have been recognized by the international community, including violations of 15 seunghwan kim, non-refoulement and extraterritorial jurisdiction: state sovereignty and migration controls at sea in the european context, leiden journal of international law (2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 71 available online at http://journal.unnes.ac.id/sju/index.php/jils the principle of non-refoulement, are very disturbing practices that can even damage the international protection system for refugees and asylum seekers.16 however, it should also be emphasized that the violation of the principle of non-refoulement is irrelevant and cannot be presented as an argument to negate its status as jus cogens in the international law. in other words, the character of the non-refoulement principle as coercive legal norms in international law cannot be aborted or canceled by the facts of violations against him. the character of the non-refoulement principle as jus cogens can only be aborted or replaced if the public accepts and recognizes the emergence of new jus cogens that replace the principle in the international legal system. it is also in line with the arguments put forward by the international court of justice based on decisions made in the case of nicaragua in 1986, which states that the violations committed by the state against a provision of international law does not always have to be interpreted as something that weakens the strength of the provisions of the law are concerned as applicable international legal norms. according to the opinion of the international court of justice in the nicaragua case in 1986, in fact the violations that occur against a provision of international law can even confirm or strengthen the position of the provisions of international law concerned rather than weaken them. the important thing that needs to be put forward in the discourse on the character of the principle of non-refoulement as a norm of coercive law in international law is that this principle is very basic in the international protection system for refugees and asylum seekers and cannot be distracted by states in international relations. in the current system, the existence of the non-refoulement principle is a 16 m alvi syahrin, the implementation of non-refoulement principle to the asylum seekers and refugees in indonesia, 1 sriwij. law rev. 168–178 (2017), http://journal.fh.unsri.ac.id/index.php/sriwijayalawreview/issue/view/7. http://journal.unnes.ac.id/sju/index.php/jils 72 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils necessity and has been institutionalized in the various international legal instruments. this principle is a fundamental concept which considered as the backbone for the entire international refugee legal system. the character of the non-refoulement principle as a jus cogens is based on the consideration that in fact, currently the non-refoulement principle is an international legal norm that has been recognized and affirmed by the international community in multilateral international conventions and other relevant international legal instruments. this principle is very basic in the international protection system for refugees and asylum seekers and cannot be distracted by countries in international relations. relevant international organizations also recognize and apply the principle of non-refoulement consistently. considering that this principle is a rule of international law recognized and adopted by the international society and has the type of jus cogens, the implication is that states must not infringe this principle, both individually and collectively. regarding the application of the principle of non-refoulement, based on certain valid reasons and based on justifiable legal procedures, a country can take different actions with the obligation to implement the nonrefoulement principle. to decide if the standard for the prohibition of refoulement has achieved the normative status of jus cogens, it is important to analyze the dual conditions for its recognition by the international community of states as a whole and as a law from which no derogation is permitted. in other words, in the absence of an international convention specifying that the rule of refoulement is jus cogens, its incorporation into the corpus juris gentium by means of customary international law must be examined. it is clear at present that the standard banning refoulement is part of customary international law and thus binding on all nations, http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 73 available online at http://journal.unnes.ac.id/sju/index.php/jils whether they are parties to the 1951 convention. what remains unclear is whether the status of jus cogens has been met by that criterion. the fact that non-refoulement is a customary norm indicates that there is state practice; but do states undertake not to refoul because they agree that jus cogens is the status of the norm? probably the most relevant medium for the identification of the importance assigned to the non-refoulement standard can be found in the findings adopted by the executive committee of the united nations high commissioner for refugees (unhcr)). these conclusions reflect the consensus of the states, working in an advisory capacity where issues are concerned. security and non-refoulement are globally discussed. in the creation of customs, their pronouncements bear a disproportionate weight, since they are the states most directly affected by non-refoulement issues. in conclusion no. 25 of 1982, the executive committee broached the first preliminary mention of the non-refoulement standard as jus cogens, where it was determined by the member states that the concept of non-refoulement gradually acquired the character of a peremptory rule of international law. 17 the executive committee decided in the late 1980s that all governments were bound to refrain from refoulement on the grounds that such actions were 'contrary to the basic prohibitions against these activities. finally, in 1996, the executive committee decided that the level of the jus cogens requirement had been gained by nonrefoulement when it determined that the concept of non-refoulement was not subject to derogation. as such, the member states of the executive committee, those states whose interests are most clearly affected by the protection of international protection and the 17 seth m. holmes & heide castañeda, representing the “european refugee crisis” in germany and beyond: deservingness and difference, life and death, am. ethnol. (2016). http://journal.unnes.ac.id/sju/index.php/jils 74 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils prohibition of refoulement, agreed by agreement that the standard of non-refoulement was, in effect, the standard of jus cogens, from which no derogation was allowed.18 consideration of the non-refoulement norm in the light of its jus cogens character has shown that it is forbidden for governments, either individually or collectively, to breach its provisions. the problem goes beyond the political interests of institutions such as the united nations security council or the european union to focus on the jus cogens essence of non-refoulement, confirming the unlawfulness of acts that would breach the right of a person not to be returned to a state in which he or she might be subjected to persecution. by playing this 'trump' card, which places the individualized right to non-refoulement above all other considerations that do not reach the jus cogens threshold, it means that citizens will question and hold accountable the actions of states. restricted access of persons to international adjudication is a basic flaw of international law. the refugee determination mechanism implicitly mandated by the 1951 convention suggests that states need to take decisions that are likely to be reviewed at the municipal level. decisions taken by the state in a federal, supranational, or foreign sense must also be naturally enforced. it is here that advocates may appeal to the jus cogens essence of non-refoulement and argue that it should not be implemented in such a way as to send an individual back to a state to face the risk of persecution regardless of the policy and wherever it may emanate from. 18 hathaway and gammeltoft-hansen, supra note 3. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 75 available online at http://journal.unnes.ac.id/sju/index.php/jils the justifications and exceptions of non-refoulement principle a refugee or asylum seeker's definition of refugee and international security defined under refugee law does not constitute an absolute assurance of protection. possible action exemptions in the refugee legal system where, for certain reasons, refugees and asylum seekers do not obtain international protection. in refugee law, an exclusion clause is a legal rule that cancels the provision of foreign protection for people who may already meet the refugee status requirements, but in fact these refugees or asylum seekers have certain qualifications that make them unworthy of international protection. in the 1951 convention, this exemption clause is formulated in articles 1d, 1e, and 1f and applies to the following groups of people: 1. persons seeking protection or assistance from agencies of the united nations other than the unhcr; 2. the person who has the same rights and obligations in the country where he lives; 3. the person who have been regarded as having committed breaches of peace, war crimes, crimes against humanity, nonpolitical crimes or actions contrary to the goals and values of the united nations. likewise, the application of the non-refoulement principle. if we look closely, the formulation of the principle of non-refoulement contained in article 33 paragraph (1) of the 1951 convention, there is a possibility that a country, based on certain valid reasons and based on accountable legal procedures, performs different actions from must implement the non-refoulement principle. in this case, the http://journal.unnes.ac.id/sju/index.php/jils 76 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils action a country can take against refugees and asylum seekers is in the form of expulsion from the territory of the country. based on article 33 paragraph (2) the 1951 convention, there are two reasons that can be used as a basis for a country to take actions that can be considered negating the obligation to implement the nonrefoulement principle formulated in article 33 paragraph (1). first, the presence of refugees or asylum-seekers in a country can be a threat to national security. in this case, it should be noted that the formulation of threats to national security is a formula that has a very broad and relative meaning. basically, the interpretation of threats to national security is the authority of the local state as the holder of sovereignty. however, an assessment of the existence of threats to national security by the local state due to the presence of refugees, which is carried out on a case-by-case basis, must be based on good faith. second, such refugees or asylum seekers have committed serious crimes in such a way that the presence in a country of refugees or asylum seekers has disturbed public order in that country. based on the provisions in article 33 paragraph (2) the 1951 convention, the international instrument accepted by the un general assembly, namely the declaration on territorial asylum 1967 also provides notes on the implementation of the non-refoulement principle by member countries. in the context of expulsion of refugees and asylum seekers in its territory, the state needs to pay attention to the following limitations. first, the decision of a country to take action to evict a refugee or asylum seeker from its territory is casuistic and based on a strict and accountable legal process and consideration. the strict legal process and can be accounted for to arrive at a decision to carry out the expulsion is also accompanied by respect for the general principles of human rights law. second, in carrying out an act of http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 77 available online at http://journal.unnes.ac.id/sju/index.php/jils expulsion a country must make sure that refugees and asylum seekers who are obliged to leave their territory can be accepted in a safe third country.19 there is the possibility of not applying the non-refoulement principle, basically growing with the provisions contained in article 2 of the 1951 convention. in article 2, general obligations must be obeyed by refugees in the country of asylum. the general obligations of refugees as defined in this article are essentially in accordance with the applicable provisions of international law in general; where everyone including foreigners residing in the territory of a country is obliged to obey the laws and regulations of the country concerned. therefore, the provisions contained in article 2 are a reaffirmation of the provisions that apply in international law in general. in contrast to the 1951 convention and the 1967 protocol which allows deviations from the application of the principle of nonrefoulement. in the 1969 convention, there are absolutely no exceptions or reasons. anything that can be used to circumvent the application of this non-refoulement principle. in this case, the convention emphasizes that threats to national security cannot be used to deviate from the principle of non-refoulement but can be used as an excuse to resettle in an area that is considered safe. as stated earlier, states also have very good reasons for violating the principle of non-refoulement. for instance, one can hardly expect a small state with limited resources, which is already struggling with large numbers of refugees, to embrace another mass influx on its own. in chapter iii, the states addressed all offered justifications for why they actually could not accept any more refugees, or why they had to limit the numbers they admitted. in addition, we must also recognize the fact that states must have a discretion to prohibit such individuals 19 m alvi syahrin, pembatasan prinsip non-refoulement, 1 bhumi pura, 2018, at 12– 16, http://journal.unnes.ac.id/sju/index.php/jils 78 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils from invoking the principle of non-refoulement. what is of primary concern, however, is that these justifications and exceptions are at risk of being generalized to the point that they begin to render the theory itself obsolete. next, let's look at what justifications and exceptions international law specifically prescribes. articles 33 and 1(f) of the refugee convention provide that person convicted of certain crimes or who pose a 'threat to the protection of the country' do not assert the value of the principle of non-refoulement, as discussed when looking at the understanding of exceptions by the united states. in order to return such a person to the country from which they came, a state would therefore be justified. but what other constitutionally valid justifications? national security and public order have long been regarded as possible justifications for derogation, professor goodwingill asserts.20 the ilc draft articles on state accountability also provide that a violation of a duty under international law is justified in exceptional cases of need. yet we find ourselves once again in unknown territory. how much of a threat is needed to public order or national security? what would be listed as an extreme requirement case? the 'need' argument is useful to explain the value of restricting exceptions and justifications.21 article 33 of the ilc draft demands that the situation (in our case, refugee influx) must jeopardize the 'critical interest' of the state and put it in a 'significant and immediate danger' position. a state can invoke need as a reason only then. roman boed considered in depth the effect of article 33 of the draft on the concept of non-refoulement, in particular in cases of mass influx. he considered that internal stability, which could be threatened, as in the case of macedonia, by a 20 sofia a. perez, immigration policy, in international encyclopedia of the social & behavioral sciences: second edition (2015). 21 lauterpacht and bethlehem, supra note 2. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 79 available online at http://journal.unnes.ac.id/sju/index.php/jils large influx of individuals of a certain ethnicity, would fall into the category when considering the 'critical interest' factor. economic stability and environmental protection were other 'important interests' that were listed. he noted, however, that it would have to be decided on a case-by-case basis if this was a 'important interest'. boed proceeded to discuss the consequences of 'significant and immediate risk' and concluded that this aspect is 'fact-specific' as well. therefore, is this a good way to give a 'safety valve' to states if the burden on them becomes too much to bear? and i must say it is. the test used is a relatively strict one. a very serious risk is suggested by 'grave and immediate danger.' it would be hard to believe that, on this basis, the australian government might have justified tampa's refusal. in addition, it is helpful that the test is explicitly laid out, with comments on the scope of the article given. it could be shown that both elements of the test are very reliant on the specific factual situation, leaving too much space for movement. nevertheless, it would be difficult to predict any potential situations that would constitute, for example,' significant and immediate risk.' obviously, any statement of necessity must be made in good faith, and not merely to escape the financial burden or political outcry that refugee acceptance might create. this test tends to strike a good balance to ensure that refugees are safe by not putting too heavy a duty on those states that accept them. any clarification of these exceptions in the present political climate is likely to be compromised by the issue of terrorism. terrorism and refugees are also seen as intertwined concerns, as was stated earlier. clearly, there may be fears that people applying for refugee status who have left a state known for its use of terrorism, such as a palestinian, could be connected to terrorism in some way, and therefore be a threat to the group. indeed, this seems to have been the method taken by the us to enact its anti-terrorist clause, which http://journal.unnes.ac.id/sju/index.php/jils 80 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils fully prohibits all palestinian liberation organization members from applying for refugee status. however, it has been argued that this effort to shield the united states from terrorists goes too far and raises the danger of violation of the clause of non-refoulement. therefore, it seems necessary to carefully consider ways in which any clarification of non-refoulement exceptions can better protect the rights of refugees while protecting the population of the host state from terrorist attacks.22 conclusion in the current system, the existence of the non-refoulement principle is a necessity and has been institutionalized in the various international legal instruments such as conventions and declarations. this principle is a fundamental concept and considered as the backbone for the entire international refugee legal system. the character of the non-refoulement principle as a jus cogens is based on the consideration that in fact today the non-refoulement principle is an international legal norm that has been recognized and affirmed by the international community in multilateral international conventions and other relevant international legal instruments. this principle is very basic in the international protection system for refugees and asylum seekers and cannot be distracted by states in international relations. relevant international organizations also recognize and apply the non-refoulement principle consistently. based on legal procedures, a country can take different actions with the obligation to implement the non-refoulement principle. 22 kim, supra note 15. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 81 available online at http://journal.unnes.ac.id/sju/index.php/jils refferences allain, j. (2001). the jus cogens nature of non‐ refoulement. international journal of refugee law, 13(4), 533-558. https://doi.org/10.1093/ijrl/13.4.533 collins, e. (2016). repatriation, refoulement, repair. development and change, 47(6), 1229-1246. https://doi.org/10.1111/dech.12270 gammeltoft-hansen, t. (2015). non-refoulement in a world of cooperative deterrence. columbia journal of transnational law, 53(1), 235-284. https://doi.org/10.2139/ssrn.2479511 gil-bazo, m. t. (2015). refugee protection under international human rights law: from non-refoulement to residence and citizenship. refugee survey quarterly, 34(1), 11-42. https://doi.org/10.1093/rsq/hdu021 goodwin-gill, g. s. (2014). the international law of refugee protection. the oxford handbook of refugee and forced migration studies, 36-47. https://doi.org/10.1093/oxfordhb/9780199652433.013.0021 hashimoto, n. (2018). refugee resettlement as an alternative to asylum. refugee survey quarterly, 37(2), 162-186. https://doi.org/10.1093/rsq/hdy004 holmes, s. m., & castañeda, h. (2016). representing the “european refugee crisis” in germany and beyond: deservingness and difference, life and death. american ethnologist, 43(1), 12-24. https://doi.org/10.1111/amet.12259 kim, s. (2017). non-refoulement and extraterritorial jurisdiction: state sovereignty and migration controls at sea in the european context. leiden journal of international law, 30(1), 49-70. https://doi.org/10.1017/s0922156516000625 lauterpacht, e., & bethlehem, d. (2003). the scope and content of the principle of non-refoulement: opinion. in refugee protection in international law: unhcr’s global consultations on international protection. https://doi.org/10.1017/cbo9780511493973.008 http://journal.unnes.ac.id/sju/index.php/jils 82 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils perez, s. a. (2015). immigration policy. in international encyclopedia of the social & behavioral sciences: second edition. https://doi.org/10.1016/b978-0-08-097086-8.75022-7 riyanto, s. (2010). prinsip non-refoulement dan relevansinya dalam sistem hukum internasional. mimbar hukum 22(3), 434–449. https://doi.org/10.22146/jmh.271 riyanto, s. (2012). kedaulatan negara dalam kerangka hukum internasional kontemporer. yustisia jurnal hukum, 1(3), 5-14. https://doi.org/10.20961/yustisia.v1i3.10074 syahrin, m. a. (2017). the implementation of non-refoulement principle to the asylum seekers and refugees in indonesia. sriwijaya law review, 1(2), 168-178. http://dx.doi.org/10.28946/slrev.vol1.iss2.41.pp168-178 syahrin, m. a. (2018). pembatasan prinsip non-refoulement. bhumi pura, 1(1), 12-16. syahrin, m. a., artono, h. b., & santiago, f. (2018). legal impacts of the existence of refugees and asylum seekers in indonesia. international journal of civil engineering and technology, 9(5), 1051-1058. about authors m. alvi syahrin, is law and immigration expert at directorate general of immigration (ministry of law and human rights, indonesia). his current research focuses on forced migration, international refugee, border security, law and development. currently is a head of research center at immigration polytechnic. some of his works have been published on several journals both national and international journal, such as dialectics of detention implementation in the immigration investigation process of oac cs case (jurnal ilmiah kajian keimigrasian, 2021), the protection of refugees and asylum seekers based on human rights: legal and political perspective in indonesia (the 13th human rights in asia conference, 2021), and immigration and the law: a study of theory and multidimensional analysis (kader bangsa law review, 2020). http://journal.unnes.ac.id/sju/index.php/jils http://dx.doi.org/10.28946/slrev.vol1.iss2.41.pp168-178 https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=9asrg2oaaaaj&sortby=pubdate&citation_for_view=9asrg2oaaaaj:q3cdl3izo_qc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=9asrg2oaaaaj&sortby=pubdate&citation_for_view=9asrg2oaaaaj:q3cdl3izo_qc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=9asrg2oaaaaj&sortby=pubdate&citation_for_view=9asrg2oaaaaj:hbr8gkjavgic https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=9asrg2oaaaaj&sortby=pubdate&citation_for_view=9asrg2oaaaaj:hbr8gkjavgic https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=9asrg2oaaaaj&sortby=pubdate&citation_for_view=9asrg2oaaaaj:hbr8gkjavgic https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=9asrg2oaaaaj&sortby=pubdate&citation_for_view=9asrg2oaaaaj:i2xixl-tujoc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=9asrg2oaaaaj&sortby=pubdate&citation_for_view=9asrg2oaaaaj:i2xixl-tujoc jils (journal of indonesian legal studies) volume 6(1) 2021 125 available online at http://journal.unnes.ac.id/sju/index.php/jils research article indonesia's legal policy during covid-19 pandemic: between the right to education and public health rizki ramadani1 , yuli adha hamzah2, arianty anggraeni mangerengi3 1,2,3, faculty of law, universitas muslim indonesia, makassar, indonesia  rizkiramadani@umi.ac.id submitted: dec 28, 2020 revised: february 28, 2021 accepted: april 28, 2021 abstract basically, every country is obliged to ensure quality education without discrimination against every citizen, including indonesia. recognition of the right to education is so important that it becomes one of the goals of the state as stated in the preamble of the 1945 constitution, namely to educate the nation's life. however, since the covid-19 pandemic hit the world, the education sector has also been affected. people have no choice, but to implement the covid-19 human rights issue in various context: national and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 1, may 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-3900-440x 126 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils prevention habits and protocols. in the case of indonesia, the government has closed the schools and universities since mid-march 2020 and switched to the online learning system. in this article, the author will explain the indonesia’s legal policy in fulfilling the community’s right to education during pandemic, at the same time analyzing how government responds to the public demands. this normative legal research is conducted using a conceptual and statutory approach, which will then be analyzed descriptivequalitatively. the result shows that educational policies during covid-19 pandemic can be divided into two phases: early pandemic and new normal transition. in the first phase, the government focused on protecting the health and safety to all communities in the education institution areas by implementing certain protocols, closing the schools and switching to distance/online learning. although public health and safety are top priorities, the policies resulted in disparities among students. while in the new normal transition phase, the government tends to respond to public demands on education problems by loosening its policies a little through schools disclosure and providing the internet support in online learning keywords: legal policy; right to education; public safety. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 127 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 125 table of contents ……………………………..…...…….. 127 introduction ………………………………….……………. 128 on the right to education & public health ….. 132 i. education as fundamental & constitutional right ……………………………….. 132 ii. the concept of public health & safety ……… 136 the legal policy during covid-19 pandemic: education or health? .………………………………….. 138 conclusion ……………………………………………..……. 150 references ……………………………………….…………… 151 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. how to cite: ramadani, r., hamzah, y. a., & mangerengi, a. a. (2021). indonesia’s legal policy during covid-19 pandemic: between the right to education and public health. jils (journal of indonesian legal studies), 6(1), 125-156. https://doi.org/10.15294/jils.v6i1.43555 http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/jils.v6i1.43555 128 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction on the beginning of 2020, the novel coronavirus disease 2019 (covid-19) originated in wuhan city of china, has spread rapidly around the world, sending billions of people into lockdown.1 although previously the world health organization (who) avoided the word "pandemic" because it was thought to cause fear and panic, seeing an increase in the spread of this virus, inevitably made who decide covid-19 as a pandemic on the 11th march 2020.2 until november, there were 49,106,931 confirmed cases worldwide, with 1,239,157 deaths.3 although the covid 19 case has been confirmed since january, the indonesian government's response has been slow and inconsistent.4 the majority of public officials do not consider the emergence of this virus to be a cause for concern. until early march, two new cases were confirmed positive in indonesia and continued to increase during april. as of november 2020, indonesia has reported 433,836 positive cases, making it the first place with the most cases in southeast asia. in terms of mortality, indonesia ranks third in asia 1 pradeep sahu, closure of universities due to coronavirus disease 2019 (covid-19): impact on education and mental health of students and academic staff, 12 cureus 1-6 (2020). https://dx.doi.org/10.7759%2fcureus.7541 2 muhammad adnan & anwar kainat. online learning amid the covid-19 pandemic: students' perspectives. 2 journal of pedagogical sociology and psychology 45-51 (2020). 3 worldometer. coronavirus update (live): cases and deaths from covid-19 virus pandemic. (2020).https://www.worldometers.info/coronavirus/%0ahttps://www.worldom eters.info/coronavirus/?, accessed on 9 april 2020. 4 sofia al farizi & bagus nuari harmawan, data transparency and information sharing: coronavirus prevention problems in indonesia, 8 j. adm. kesehat. indones. 35 (2020). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 129 available online at http://journal.unnes.ac.id/sju/index.php/jils with 14,540 deaths. meanwhile, it was announced that 364,417 people had recovered, leaving 54,879 cases currently being treated.5 basically, covid-19 is transmitted from person to person and is propagated primarily via respiratory drops released through coughing and sneezing within a range.6 this kind of transmission model causes its spread so fast that it becomes a serious concern of governments around the world. who also issued a number of appeals such as physical distancing, wearing masks and washing hands. this health protocol is also applied globally so that it has an impact on the social and economic aspects of society,7 especially in terms of physical distancing which causes the majority of countries to close their territory from outsiders, including temporarily closing schools and higher education institutions and adjusting learning activities to the distance learning model. these nationwide closures are impacting hundreds of millions of students. several other countries have implemented localized closures impacting millions of additional learners. according to the united nations educational, scientific and cultural organization (unesco), by april 2020 over 1.37 million students have been affected in their learning, with total of 172 countries worldwide closing their schools caused by covid-19 pandemic, including indonesia. the number continues to increase until november with 224.1 million students affected.8 although recently several countries have started to open schools fully, eighty percent of students all over 5 covid-19 handling task force. covid-19 data. (2020). https://covid19.go.id/peta-sebaran, accessed on 8 november 2020. 6 myungsun park et al., optimization of primer sets and detection protocols for sarscov-2 of coronavirus disease 2019 (covid-19) using pcr and real-time pcr, 52 exp. mol. med. 963–977 (2020), http://dx.doi.org/10.1038/s12276-020-0452-7. 7 maria nicola, zaid alsafi, catrin sohrabi, ahmed kerwan, ahmed al-jabir, christos iosifidis, maliha agha, & riaz agha. the socio-economic implications of the coronavirus pandemic (covid-19): a review. 78 international journal of surgery (london, england) 185-193 (2020). https://dx.doi.org/10.1016%2fj.ijsu.2020.04.018 8 unesco. covid-19 impact on education. (2020). https://en.unesco.org/covid19/educationresponse, accessed on 12 october 2020. http://journal.unnes.ac.id/sju/index.php/jils https://covid19.go.id/peta-sebaran https://en.unesco.org/covid19/educationresponse 130 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils the world are still at risk of falling behind academically in the years to come, jeopardizing the future growth rates and income from their fields of activity.9 in previous research by rachel hilburg, et all. concluded that the pandemic has a very significant impact on medical education that relies on face-to-face learning models. educators and teachers are also forced to adapt to a series of technological tools to keep maximizing learning activities.10 in fact, this adaptation process has many impacts on students. research from wenjun cao et al, for example, shows a correlation between postponement of school and unbearable psychological pressure and symptoms of anxiety.11 the same findings were presented by kapasia et al, who assessed the learning status of indian undergraduate and postgraduate students during pandemic. about forty six (46) percent of students are feeling stress, depression, and anxiety, while the rest are suffering from internet connectivity problem, insufficient gadget, and uninteresting teachings.12 corlatean with reference to other research also explains some of the constraints and risks of education during a pandemic, ranging from economic disparities among students, the unequal ability and readiness of teaching staff, to racial and gender discrimination due to closure of educational institutions.13 while pham and ho, who conducted research on vietnam education during the covid-19 pandemic, showed that the government and educational institutions 9 titus corlatean, risks, discrimination and opportunities for education during the times of covid-19 pandemic, res. assoc. (2020), http://rais.education/wpcontent/uploads/2020/06/004tc.pdf. 10 rachel hilburg et al., medical education during the coronavirus disease-2019 pandemic: learning from a distance, adv. chronic kidney dis. (2020), https://doi.org/10.1053/j.ackd.2020.05.017. 11 wenjun cao et al., the psychological impact of the covid-19 epidemic on college students in china, 287 psychiatry res. 112934 (2020), https://doi.org/10.1016/j.psychres.2020.112934. 12 nanigopal kapasia et al., impact of lockdown on learning status of undergraduate and postgraduate students during covid-19 pandemic in west bengal, india, 116 child. youth serv. rev. 105194 (2020), https://doi.org/10.1016/j.childyouth.2020.105194. 13 titus corlatean, supra note 9. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 131 available online at http://journal.unnes.ac.id/sju/index.php/jils use the combination of traditional modes (i.e., posting materials for students in remote areas) and the online learning to minimize the disparities.14 beside all of the findings above, the global campaign for education and unesco has stated that the covid-19 crisis is an opportunity to focus all efforts on developing policies for educational inclusion.15 thus, it is important to do basic research in order to explain the government's legal policies in learning management during covid-19 pandemic. the policy also needs to be analyzed to determine the direction and priorities of the government regarding the community's right to adequate education and public safety. as well as an effort to re-evaluate the existing legal policies, whether they have fulfilled the rights of the community as mandated by the constitution. as a legal research, the main focus of this study is to analyze the politics of law in government policies related to the implementation of education during the covid-19 pandemic. thus, this research requires secondary data from literature studies. based on this, the research is categorized as doctrinal or normative legal research. judging from its nature, this research is descriptiveprescriptive. descriptive in nature because it is in the form of an explanation which aims to obtain a complete picture (description) of the legal situation prevailing in a certain place (indonesia) and at certain times (covid-19 pandemic) that occur in society. prescriptive is intended to provide an argument for the research results that have been analyzed. to obtain information from various aspects of the 14 hiep hung pham & tien thi hanh ho, toward a ‘new normal’ with e-learning in vietnamese higher education during the post covid-19 pandemic, 39 high. educ. res. dev. 1327–1331 (2020). https://doi.org/10.1080/07294360.2020.1823945 15 global campaign for education. civil society organisations call on states and the international community to ensure the right to education for all during the #covid19 crisis. (2020). https://www.campaignforeducation.org/en/2020/04/24/civil-societyorganisations-call-on-states-andtheinternational-community-to-ensure-theright-to-education-for-all-during-the-covid19 crisis/, accessed on 4 july 2020. http://journal.unnes.ac.id/sju/index.php/jils https://www.campaignforeducation.org/en/2020/04/24/civil-society-organisations-call-on-states-andtheinternational-community-to-ensure-the-right-to-education-for-all-during-the-covid19%20crisis/ https://www.campaignforeducation.org/en/2020/04/24/civil-society-organisations-call-on-states-andtheinternational-community-to-ensure-the-right-to-education-for-all-during-the-covid19%20crisis/ https://www.campaignforeducation.org/en/2020/04/24/civil-society-organisations-call-on-states-andtheinternational-community-to-ensure-the-right-to-education-for-all-during-the-covid19%20crisis/ 132 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils issues, this study uses several approach methods: first, a statutory approach, which is carried out by examining statutory regulations related to the legal issue being studied (education policies during pandemic). second, the conceptual approach, which departs from the views and concepts that develop in legal science. based on the type of normative research, secondary data is used which include primary and secondary legal materials. primary legal materials are binding legal materials consist of the basic law (1945 constitution of the republic of indonesia) and statutory regulations under it. meanwhile, the secondary legal materials used include the results of previous research, journals, books, and actual news. on the right to educaton & public health i. education as fundamental & constitutional right as spring wrote in his book, the greatest difficulty in justifying and defining the right to education is due to the pluralism of languages and cultures.16 in this sense, it is difficult to formulate a definition of education which in general can represent the entire economic, social and cultural context of the world. however, the existence of the right to education can be traced since it was first recognized in the universal declaration of human rights (udhr), which established in 1948 by the countries of the newly formed united nations.17 16 joel h spring, the universal right to education : justification, definition and guidelines (2000). 17 tristan mccowan, reframing the universal right to education, 46 comp. educ. 509– 525 (2010). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 133 available online at http://journal.unnes.ac.id/sju/index.php/jils basically, education as fundamental right are mentioned in the article 26 of the 1948 udhr, stated that:18 1) everyone has the right to education. education shall be free, at least in the elementary and fundamental stages. elementary education shall be compulsory. technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 2) education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. it shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the united nations for the maintenance of peace. 3) parents have a prior right to choose the kind of education that shall be given to their children. the right to education is clearly established in international agreements and reinforced in a number of covenants, conventions, declarations and frameworks relating to education, human rights and the rights of children. one of the most remarkable intiative is the 1990 world conference on education for all (efa) in jomtien, thailand. despite any political, social and cultural difference in interpretation the education, the opening in the efa world declaration is able to unite the vision and support of all participating countries for the right to education. the first line in preamble stated that: “recalling that education is fundamental rights for all people, women and men, of all ages, throughout the world”.19 fundamental rights are closely related to the constitution, at least in its formal concept. a formal concept of fundamental right is employed if such rights are mentioned as rights contained in a constitution, or if the rights in question are classified by a constitution as fundamental rights, or if they are endowed by the constitution with 18 united nations, united nations human rights declaration 2 (1948), https://www.ohchr.org/en/udhr/documents/udhr_translations/eng.pdf. 19 spring, supra note 16. http://journal.unnes.ac.id/sju/index.php/jils 134 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils special protection.20 nowadays, most litigation and scholarship also premised on theories that education, as a practical matter, has become so important to individuals’ life chances that the constitution must protect it. in fact, most of countries have recognized the right to education as a right that must be fulfilled and protected in the constitution. for example in the united states history, the national and state-level commitment to education became far more concrete since the final ratification of their fourteenth amendment constitution.21 while in india, the right to education has only been recognized as a constitutional right since the 86th amendment to the constitution in 2002, which introduced article 21(a) stated that “the state shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the state may, by law, determine”.22 in other words, the right to education has already recognized and formalized as constitutional rights, even though the recognition happened at different timescales. as a republic country that declares itself as a “rechstaat”, indonesia also recognizes and upholds human rights. this can be seen from indonesia's participation in a series of international conventions and treaties related to human rights. until now, there are 8 (eight) of the 9 (nine) main international human rights instruments that have been ratified by indonesia. among these are the international covenant on economic, social and cultural rights (law no.11 of 2005),23 convention on the rights of the child (presidential decree 20 agustín j menéndez & erik o. eriksen, eds. arguing fundamental rights. springer science & business media (2006). 21 derek w. black, the fundamental right to education, 94 notre dame law rev. 1059–1114 (2019). 22 c. chatterjee, e.a. hanushek & s. mahendiran, can greater access to education be inequitable? new evidence from india's right to education act. nber working paper w27377 (2020). 23 republic of indonesia, undang-undang republik indonesia nomor 11 tahun 2005 tentang pengesahan internasional covenant on economic, social and cultural right (kovenan internasional tentang hak-hak ekonomi, sosial dan budaya) (2005), https://jdih.kemnaker.go.id/data_puu/5.pdf. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 135 available online at http://journal.unnes.ac.id/sju/index.php/jils no. 36/1990),24 and international covenant on civil and political rights (law no. 12 of 2005),25 in which many of these international treaties mention the guarantee of the right to education. the right to education as fundamental values have also been contained in the constitution of the republic of indonesia, which indicates that the state recognizes and upholds these rights as constitutional rights of every citizen that must be protected. this is in line with the objectives of the state as stated in the preamble of the 1945 constitution, that the government of the republic of indonesia was formed to protect the entire indonesian nation, promote public welfare, and educate the nation's life. in line with the objectives of the country, the founders of the state stipulated further regulations regarding the right to education in article 31 paragraph (1) of the 1945 constitution (before the amendment) that, "every citizen has the right to receive teaching."26 article 31 of the 1945 constitution after the fourth amendment then describes in more detail the rights of citizens in education as follows: (1). every citizen has the right to education; (2). every citizen is obliged to attend basic education and the government is obliged to provide the budget; (3). the government strives for and implements a national education system, which increases faith and piety as well as noble morals in the framework of the intellectual life of the nation, which is regulated in law; (4). the state prioritizes the education budget for at least twenty percent of the state revenue and 24 republic of indonesia, keputusan presiden republik indonesia nomor 36 tahun 1990 tentang pengesahan convention on the rights of the child (konvensi tentang hak-hak anak) 1984 (1990), https://peraturan.bpk.go.id/home/details/63923/keppres-no-36-tahun-1990. 25 republic of indonesia, undang-undang republik indonesia nomor 12 tahun 2005 tent ang pengesahan international covenant on civil and political rights (kovenan internasional tentang hak-hak sipil dan politik) (2005), https://peraturan.bpk.go.id/home/details/40261/uu-no-12-tahun2005#:~:text=uu no. 12 tahun 2005,politik) %5bjdih bpk ri%5d. 26 republic of indonesia, undang undang dasar 1945 (1945), https://luk.staff.ugm.ac.id/atur/uud1945.pdf. http://journal.unnes.ac.id/sju/index.php/jils 136 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils expenditure budget as well as from the regional opinion and expenditure budget to meet the needs of providing national education; (5). the government advances science and technology by upholding religious values and national unity for the advancement of civilization and the welfare of mankind. the government's obligation in the implementation of national education is to provide services and facilities, as well as to guarantee the implementation of quality education for every citizen without discrimination and is obliged to guarantee the availability of funds to provide education for every citizen aged seven to fifteen years. this is as stated in article 11 of law number 20 of 2003 concerning the national education system.27 ii. the concept of public health & safety in general, public health and safety is defined as the science of the anticipation, recognition, evaluation and control of hazards arising in or from the workplace that could impair the health and well-being of public, taking into account the possible impact on the surrounding communities and the general environment.28 the provision of public health is one of the most important responsibilities of government.29 basically, the duty of public health involves managing the problems and dangers that occur in society every day. workers like firefighters, police officers, emergency medical technicians (emts) and air traffic controllers respond to society's emergencies and help keep the general public safe. under the traditional conception, public health focuses on the health of entire populations rather than individual patients. in public 27 ristina yudhanti, kebijakan hukum pemenuhan hak konstitusional warga atas pendidikan dasar, 7 pandecta res. law j. (2013). 28 medical safety and global health, public health and safety, longdom. https://www.longdom.org/special-issue/public-health-and-safety399.html, accessed on 9 november 2020 29 tom latourrette, david s. loughran, & seth a. seabury. occupational safety and health for public safety employees: assessing the evidence and the implications for public policy. 792. rand corporation (2008). http://journal.unnes.ac.id/sju/index.php/jils https://www.longdom.org/special-issue/public-health-and-safety-399.html https://www.longdom.org/special-issue/public-health-and-safety-399.html jils (journal of indonesian legal studies) volume 6(1) 2021 137 available online at http://journal.unnes.ac.id/sju/index.php/jils health, the ‘patient’ is the whole community or population, and the goal of public health is to reduce disease and early death in populations.30 one of the most commonly cited definitions of public health comes from the institute of medicine (iom) report the future of public health: “public health is what we, as a society, do collectively to assure the conditions for people to be healthym.31 the iom report also makes public health the responsibility of everyone, although it gives primacy to government efforts: “the mission of public health is addressed by private organizations and individuals as well as by public agencies. but the governmental public health agency has a unique function: to see to it that vital elements are in place and that the mission is adequately addressed.” rothstein also emphasized a different concept about public health, namely through government intervention. in this context, public health involves public officials as policy makers who are right in accordance with their authority, by balancing personal rights and public interests, to protect public health.32 the moral and political responsibility of the government to mandate public health actions, including quarantine, isolation, immunization, contact tracing, property seizures, and environmental regulation, if the health of the population is threatened, for example the infectious disease. in the case of indonesia, the individual right to health as the basis of public health is equally important as the people’s right to education in the constitution. article 28h paragraph (1) of 1945 contitution of the republic of indonesia stated that "everyone has the right to live in physical and mental prosperity, to live, and to have a good and healthy living environment and the right to obtain health services." in addition, with regard to the right to health it is also regulated in article 34, particularly in paragraphs (3) and (4) which reads “the state is responsible for the provision of proper health 30 beauchamp, dan e., and bonnie steinbock, eds. new ethics for the public's health. oxford university press (1999). 31 bailus walker, the future of public health : institute of medicine ’ s 988 report the institute, 10 19–31 (2008). 32 mark a rothstein, rethinking the meaning of, 30 j. law, med. ethics 144– 149 (2002), http://doi.wiley.com/10.1111/j.1748-720x.2002.tb00381.x. http://journal.unnes.ac.id/sju/index.php/jils 138 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils service facilities and public service facilities. the affirmation of the right to health as a human right is emphasized in law number 36 of 2009 concerning health.33 in the preamble it is stated that: a. that health is a human right and one of the elements of welfare that must be realized in accordance with the ideals of the indonesian people as referred to in pancasila and the 1945 constitution of the republic of indonesia; b. that every activity in an effort to maintain and improve the highest degree of public health is carried out on the basis of nondiscriminatory, participatory and sustainable principles in the framework of forming indonesia's human resources, as well as enhancing the nation's resilience and competitiveness for national development.34 (affandi, 2019). the legal policy during covid-19 pandemic: education or health? based on the explanation above, it can be concluded that both the right to education and public health are equally recognized and guaranteed in the indonesian constitution, which makes it recognized as fundamental and constitutional rights. therefore, the fulfillment of both rights becomes the responsibility of the state, especially the government as reaffirmed in article 28i paragraph (4) which reads "protection, advancement, enforcement and fulfillment of human rights are the responsibility of the state, especially the government." thus, it is interesting to examine how government tries to fulfill the right to education in a pandemic situation that requires priority 33 republic of indonesia, undang-undang nomor 36 tahun 2009 tentang kesehatan (2009), https://infeksiemerging.kemkes.go.id/download/uu_36_2009_kesehatan.pdf. 34 hernadi affandi, implementasi hak atas kesehatan menurut undangundang dasar 1945: antara pengaturan dan realisasi tanggung jawab negara, 4 j. huk. positum 36 (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 139 available online at http://journal.unnes.ac.id/sju/index.php/jils for public safety and health, where these two aspects (education and health) are both fundamental and constitutional rights which the state must fulfill. the main basis that the protection of human rights is the obligation of the government is the principle of democracy that in fact the government is given the mandate of power to protect the rights of citizens. moreover, the concept of a welfare state as a modern state concept has given more power to the government to act. this power is solely for advancing and achieving the fulfillment of human rights. the government is no longer just safeguarding someone not to violate or have their rights violated, but must strive to fulfill these rights, including to fulfill the basic right to education in a pandemic situation. since the announcement of the first case on march 2nd, 2020, the spread of the coronavirus in indonesia has continued to increase rapidly. in april, coronavirus has infected more than 5,000 people (indonesian task force for the acceleration of handling covid-19, 2020). due to the outbreak, the mortality rate in indonesia was quite high with a total of 582 deaths with case fatality rate (cfr) of 8.9% on april 19th, 2020.35 (indonesian ministry of health, 2020). the percentage of deaths due to coronavirus in indonesia exceeds the global cfr of 5.85% on april 19th, 2020.36 this situation caused the government to take quick action to limit community activities outside the home, including teaching and learning activities in order to contain the spread of covid-19. a series of policies regulating education during pandemic include the following: 35 ministry of health republic of indonesia. covid-19, infection emerging. (2020). available at: https://infeksiemerging.kemkes.go.id / (accessed: 9 april 2020). 36 worldometer. coronavirus update (live): cases and deaths from covid-19 virus pandemic, (2020). available at: https://www.worldometers.info/coron avirus/%0ahttps://www.worldometer s.info/coronavirus/?, accessed on 9 april 2020. http://journal.unnes.ac.id/sju/index.php/jils 140 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 1. educational institution area protocol37 responding to the emergence of positive cases of covid-19 in indonesia, on march 6 2020 the government, through the indonesian presidential chief of staff, said that the ministry of health has compiled a handling protocol related to the prevention and control of covid-19. the contents of the protocol refer to the appeal of who, the ministry of health and the ministry of law and human rights. in total, there are five protocols issued by the government regarding covid-19, namely the health protocol, the communication protocol, the border monitoring protocol, the education area protocol, and the public area and transportation protocol. the protocol is implemented throughout indonesia by the government, guided centrally by the ministry of health. in general, the protocol for the educational institution area contains 15 instructions that must be followed by all people in schools and other educational institutions. several things are regulated, among others, regarding the coordination of the education office and the health office in each region related to regional planning and readiness to face covid-19, providing facilities and instructions for washing hands in various strategic locations in schools, appeals to school residents who are sick with symptoms of fever / cough / runny nose / sore throat / shortness of breath to isolate theirself at home, and the obligation for educational institutions to be able to conduct initial screening of education residents who have complaints of illness including checking body temperature, to be further informed and coordinated with the local health office for carried out further examination. 37 ministry of health republic of indonesia, penanganan covid-19 protokol area institusi pendidikan 2 (2020), https://covid19.go.id/p/protokol/protokol-penanganan-covid-19-di-areainstitusi-pendidikan. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 141 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. circular letter number 4 of 2020 concerning implementation of education policies in the time of emergency for the spread of covid38 this policy was issued by the minister of education and culture of the republic of indonesia on 24 march 2020. in the opening of the letter it is stated that; "with regard to the increasing spread of covid-19, the physical and mental health of students, teachers, school principals and all school members is a major consideration in implementing education policy". in substance, this decree regulates five things: first, that national examination activities for 2020 are eliminated and substituted for school exams, second, that the learning process is carried out at home through online / distance learning, third, implementation of school exams and class promotion based on health protocols, fourth, the acceptance of new students according to health protocols, and fifth, school operational assistance funds can be used to finance needs in preventing covid-19. 3. regulation of the minister of education and culture number 19 of 2020 concerning amendments to regulation number 8 of 2020 concerning technical instructions for regular school operational assistance39 this regulation was issued by the government on march 2020 in order to adjust the budget for online learning during a pandemic. in this provision, the government provides flexibility for schools to 38 ministry of education and culture republic of indonesia, surat edaran nomor 4 tahun 2o2o tentang pelaksanaan kebijakan pendidikan dalam masa darurat penyebaran corona virus disease (covid1 9) (2020), https://drive.google.com/file/d/1vraoa3qz5bv2p6fgn7xv7ghvms0u44er/vi ew. 39 ministry of education and culture republic of indonesia, peraturan menteri pendidikan dan kebudayaan republik indonesia nomor 19 tahun 2020 tentang perubahan atas peraturan menteri pendidikan dan kebudayaan nomor 8 tahun 2020 tentang petunjuk teknis bantuan operasional sekolah reguler (2020), http://ditpsd.kemdikbud.go.id/upload/filemanager/download/permendikbud no.19 tahun 2020 ttg perubahan juknis bos reguler.pdf. http://journal.unnes.ac.id/sju/index.php/jils 142 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils use school operational assistance funds for financing during the covid-19 pandemic. article 9a states that school operational assistance funds can be used to purchase pulses, data packages, and / or paid online education services for educators and / or students in the context of implementing learning from home. including the purchase of hand sanitizing liquid or soap, disinfectant, mask or other hygiene support. 4. joint decree of the minister of education and culture, minister of religion, minister of health, and minister of domestic affairs concerning guidelines for implementation of learning in the 2019 corona virus disease pandemic (number 01/kb/2020, number 516 tahun 2020, number hk.03.01/menkes/363/2020, number 440-882 of 2020) the joint decree of the four ministers was officially enforced since mid-june, at which time the task force for the acceleration of handling covid-19 had designated green, yellow, orange and red zones in all regencies / cities in indonesia. the zoning refers to the policy of the indonesian covid-19 task force which divides the risk map for the spread of covid-19 into five categories. the five categories are high risk (red zone), medium risk (orange zone), low risk (yellow zone), no cases (green zone), and not affected (ligtht green zone). there are several indicators used to calculate the status of the covid-19 risk zone in indonesia, namely: epidemiology, public health surveillance, and health services. based on the second dictum in the joint decree of the four ministers, regions belonging to the green zone can carry out face-toface learning gradually during the transition period until the environment is completely ready to enter a new habit phase (new normal). provisions regarding the terms of face-to-face learning are also regulated in the decision attachment. these rules are very detailed, starting from the health protocol, the duration of study, the minimum distance between students, to the maximum number of students in one room. meanwhile, areas that are still in the yellow, orange and red zones are prohibited from doing face-to-face learning in educational units and continuing to learn from home. although http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 143 available online at http://journal.unnes.ac.id/sju/index.php/jils schools can be opened based on a zoning system, the policy of reopening schools to be able to conduct face-to-face learning remains in the hands of the regional head. in addition, the principal and parents of students also have the right to determine whether the school is ready to conduct face-to-face learning again or continue to implement the distance learning system. 5. joint decree of the minister of education and culture, minister of religion, minister of health, and minister of domestic affairs concerning guidelines for implementation of learning in the 2019 corona virus disease pandemic (number 03/kb/2020, number 612 of 2020, number hk.01.08/menkes/502/2020, number 119/4536/sj)40 this provision was stipulated on august 7, 2020. basically, it is the same legal product but its content has been adjusted by opening face-to-face learning in the yellow zone. this was done as the government's response to the demands of the community who were not satisfied with the distance learning model. as stated in this joint decree preamble, the results of the government's evaluation indicate the need for face-to-face learning from students who experience problems in implementing distance learning. based on the results of the evaluation, face-to-face learning was then extended to the yellow zone which has a low risk of transmission based on the risk mapping by the national task force in handling covid-19. based on data as of august 2020 from the official website http://covid19.go.id, around 48 percent of students are still in the red and orange zones. meanwhile, about 52 percent of students are in the yellow and green zones. this data is dynamic and can continue to change at any time depending on the data on the spread of the covid-19 virus. 40 republic of indonesia, keputusan bersama menteri pendidikan dan kebudayaan, menteri agama, menteri kesehatan, dan menteri dalam negeri republik indonesia tentang perubahan atas keputusan bersama menteri pendidikan dan kebudayaan, menteri agama, menteri kesehatan, dan menteri dalam negeri 1–17 (2020), https://www.kemdikbud.go.id/main/files/download/5baf1873d5766d3. http://journal.unnes.ac.id/sju/index.php/jils 144 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 6. regulation of the secretary general of the ministry of education and culture number 14 of 2020 concerning technical guidelines for internet data quota assistance in 202041 through its press release, the ministry of education and culture emphasized that internet data quota assistance is provided to students, students, educators and teachers, as well as lecturers. in the policy regulation issued this september, the form of assistance provided is in the form of internet data quota divided into general quota and study quota with an explanation that: general quota is a quota that can be used to access all pages and applications; and learning quota is a quota that can only be used to access learning pages and applications, with a list listed on http://kuotabelajar.kemdikbud.go.id/. internet quota packages for educators at paud and primary and secondary education get 42 gb per month with details of 5 gb general quota and 37 gb study quota. while the internet quota package for students and lecturers gets 50 gb per month, with details of 5 gb general quota and 45 gb study quota. this internet quota assistance program is the government's effort to realize the aspirations of the community regarding the challenges of distance learning during the pandemic. among them is to facilitate online learning of all teachers, students, lecturers, and students, especially during the pandemic. previously, the indonesian child protection commission (kpai) noted that there were many student complaints about the distance learning system during the covid-19 pandemic related to internet quota constraints. this is based on a survey of 1,700 students in indonesia, where complaints about phone credit and internet quota were recorded at the highest at 43 percent.42 41 ministry of education and culture republic of indonesia, peraturan sekretaris jenderal nomor 14 tahun 2020 tentang petunjuk teknis bantuan kuota data internet tahun 2020 (2020), https://anggunpaud.kemdikbud.go.id/images/upload/images/19092020_salin an_persesjen_nomor_14_tahun_2020-merged.pdf. 42 dian erika nugraheny, survei kpai: 43 persen siswa keluhkan kuota internet untuk pembelajaran daring, kompas.com (2020), http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 145 available online at http://journal.unnes.ac.id/sju/index.php/jils (nugraheny, 2020). through this policy, the government is committed to ensuring that not only some but all teachers, students, lecturers and students can be helped during distance learning. based on a number of legal policies above, it can be seen that the legal policies of the indonesian government in fulfilling the right to education during a pandemic is dynamic. in general, the policy can be divided into two phases: pandemic initial phase, and entering new normal phase. details can be seen in the following table: table 1 education policies during covid-19 pandemic phase statutory regulation general policies consideration e a r l y p a n d e m ic (m a rc h -j u n e ) 1. educational institution area protocol 15 instructions obligatory to all people in schools and educational institutions responding to the emergence of positive cases of covid-19 in indonesia 2. circular letter number 4 of 2020 concerning implementation of education policies in the time of emergency for the spread of covid learning process is carried out at home through online/distance learning with regard to the increasing spread of covid-19, and to maintain physical and mental health of students & teachers 3. regulation of the minister of education and culture number 19 of 2020 concerning technical instructions for regular school operational assistance school operational assistance funds can be used to purchase phone credit, data packages, and / or paid online education services for educators and / or students, and other needs to prevent covid-19. to provides flexibility for schools to use school operational assistance funds for financing during the covid19 pandemic https://nasional.kompas.com/read/2020/08/08/10265321/survei-kpai-43-persensiswa-keluhkan-kuota-internet-untuk-pembelajaran. http://journal.unnes.ac.id/sju/index.php/jils 146 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils n e w n o r m a l t r a n s it io n (j u ly -p re se n t) 4. joint decree of the four minister concerning guidelines for implementation of learning in the 2019 corona virus disease pandemic (first) re-opening schools based on covid-19 spread zoning (risk mapping). regions belonging to the green zone (no cases) can carry out face-toface learning gradually, while yellow, orange and red zone are prohibited. public demand to reopen schools, the task force for the acceleration of handling covid19 had designated green, yellow, orange and red zones in all regencies / cities in indonesia. 5. joint decree of the four minister concerning guidelines for implementation of learning in the 2019 corona virus disease pandemic (revision) re-open schools in green zone (no risk) and yellow zone (low risk) in response to the community’s demands and the government's evaluation which indicate the need for face-to-face learning from students who experience problems in distance learning. 6. regulation of the secretary general of the ministry of education and culture number 14 of 2020 concerning technical guidelines for internet data quota assistance in 2020 internet data quota assistance is provided to students, students, educators and teachers, as well as lecturers. to respond and realize the aspirations of the community regarding the credit and internet quota problem during distance learning source: author ’s processed data in the early days of the pandemic, it was seen that the government was still focused on limiting the spread of cases with large-scale social restriction policies. using a series of health protocols in various sectors including the area of educational institutions, the http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 147 available online at http://journal.unnes.ac.id/sju/index.php/jils government also closed all schools and educational institutions, and transferred all teaching and learning activities to a distance learning system or online system. the government, in this case the minister of education and culture together with the minister of home affairs, also coordinates with all regional heads to ensure that learning policies during the covid-19 pandemic are carried out well in all regions in indonesia. it can be seen that the principles of education policy during the covid-19 pandemic were to prioritize the health and safety of students, educators, education personnel, families, and society in general, while taking into account the conditions of students in fulfilling educational services during the covid-19 pandemic. at the start of the pandemic (march-june), it could be said that the right to public health and safety was the top priority compared to the right to education. particularly, china was the first to adopt the policy of “disrupted classes, undisrupted learning” by providing online, distance and remote teaching.43 the indonesian government is trying to adopt the same adaptation by formulating online learning policies and emergency curricula. in a pandemic like today, closing schools and using online learning systems or distance learning is a dilemma decision to bridge the fulfillment of the right to health and public safety without neglecting the community's right to education. however, in principle, online learning can only be effective in digitally advanced countries.44 43 r huang et al., guidance on open educational practices during school closures : utilizing oer under covid-19 pandemic in line with unesco oer recommendation, access, open pract. open educ. oer, util. recomm. unesco o e r (2020), http://sli.bnu.edu.cn/uploads/soft/200518/2_1851146971.pdf. 44 giorgi basilaia & david kvavadze, transition to online education in schools during a sars-cov-2 coronavirus (covid-19) pandemic in georgia, 5 pedagog. res. (2020), https://www.researchgate.net/profile/giorgi_basilaia/publication/340560537_tr ansition_to_online_education_in_schools_during_a_sars-cov2_coronavirus_covid 19_pandemic_in_georgia/links/5e90a5d04585150839cf4397/transition-toonline-education-in-schools-during-a-sars-cov-2-coronavirus-covid-19pandemic-in-georgia.pdf. http://journal.unnes.ac.id/sju/index.php/jils 148 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils in the case of indonesia, with its geographic conditions in the form of islands and uneven infrastructure, the online learning policy has actually created gaps among students. the ministry of communication and information, for example, said that until 2019 there were still 24,000 villages that had not been touched by internet services. a member of the house of representatives (dpr) also criticized the policy of the ministry of education and culture by referring to the condition of schools in indonesia, where the majority have not had electricity. according to the data he obtained, there are still around 6,604 out of 116,783 without electricity. as many as 33,227 other education units have electricity but cannot access the internet, while the remaining 7,552 education units have no electricity, let alone the internet.45 on the other hand, e-learning, no matter how sophisticated the technology used, has not been able to replace the implementation of face-to-face learning because the conventional face-to-face interaction method is still much more effective than online learning, at least for indonesia.46 several separate studies also show that online learning is not fully effective to implement, especially schools in villages that lack facilities in the form of integrated technology to support the online learning process. the high cost and adequate facilities between teachers and students also make the online learning process not as effective as expected.47 for example, research from ameli et al on the effectiveness of online learning systems during a pandemic in elementary schools in madura, east java. it is concluded that the lack of facilities and infrastructure which is influenced by economic factors 45 dhita seftiawan, ribuan sekolah tak teraliri internet, dpr dorong kemendikbud buat cetak biru orientasi daring (2020), https://www.pikiranrakyat.com/pendidikan/pr-01386169/ribuan-sekolah-tak-teraliri-internet. 46 muhammad yaumi, media dan teknologi pembelajaran, pranada media (2018). 47 john demuyakor, coronavirus (covid-19) and online learning in higher institutions of education: a survey of the perceptions of ghanaian international students in china, 10 online j. commun. media technol. e202018 (2020), https://www.ojcmt.net/download/coronavirus-covid-19-and-online-learning-inhigher-institutions-of-education-a-survey-of-the-8286.pdf. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 149 available online at http://journal.unnes.ac.id/sju/index.php/jils and technological unpreparedness is an obstacle in the progress of online learning activities, so that learning outcomes are ineffective.48 another important thing that must be considered is the closure of schools and educational institutions. based on research from masonbrink, et al., it is stated that extended school closures can also lead to lower test scores, lower educational attainment and decreased earning potential.49 during closures, students need reliable access to technology, a stable learning environment and parents with the necessary time and skills to support for remote learning. although distance learning has obstacles for all individuals, those in poverty are at greater disadvantage and thus at increased risk for widening educational disparities. only one in seven children lacks home internet access, with a two-fold higher rate among low income communities.50 this is what the indonesian government is also aware of, which then encourages the government to relax its school closure policy. along with complaints and demands from the community due to disparities in distance learning, the government is reopening schools based on a zoning system or a risk map for the spread of covid-19. it can be seen here that the government has begun to improvise by opening some schools in areas where the spread of covid-19 is minimal. thus, the pendulum of priorities on public health and safety has begun to shift towards fulfilling the right to education. however, this policy has not been able to completely eliminate the gap and social disparities from distance learning. given the ineffective handling of the spread of covid-19 and the increasing number of 48 briliannur dwi et al., analisis keefektifan pembelajaran online di masa pandemi covid-19, 2 j. pendidik. guru sekol. dasar 3 (2020), https://ummaspul.ejournal.id/mgr/article/download/559/313. 49 abbey r. masonbrink & emily hurley, advocating for children during the covid19 school closures, 146 pediatrics (2020), https://scholar.google.com/scholar?output=instlink&q=info:uh8taqseu5cj:sch olar.google.com/&hl=en&as_sdt=0,5&scillfp=1786287175863471987&oi=lle. 50 harry anthony; vegas psacharopoulos, george; collis, victoria; patrinos & emiliana, lost wages: the covid-19 cost of school closures (2020), https://www.econstor.eu/bitstream/10419/217486/1/glo-dp-0548.pdf. http://journal.unnes.ac.id/sju/index.php/jils 150 jils (journal of indonesian legal studies) volume 6(1) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils positive cases, the number of areas in the green zone (no case or no risk) and yellow zone (low risk) is still very minimal, namely 117 regions or around 24 percent of the total area in indonesia. this gap is attempted to be overcome by issuing financial policies in the form of phone credit and internet packages which are expected to slightly ease the burden on students and educators while carrying out online learning. conclusion based on the results and analysis above, we can conclude that educational policies of indonesia’s government during covid-19 pandemic can be divided into two phases: namely the “early pandemic” which occur from beginning of march until june, and “new normal transition”, starting from july until the present day. in the first phase, the government focused on protecting the health and safety to all communities in the education institution areas by implementing certain protocols, closing the schools and switching to distance/online learning system. although the legal policy is to put the public health and safety as top priorities in the early spread of pandemic, the educational policies resulted in disparities among students. while in the new normal transition phase, government tends to respond to the public demands and education problems by loosening its policies a little through school disclosure and providing the internet support in online learning. this shows that the government is in a dilemmatic position to fulfill the community’s right to health and the right to education at the same time. however, based on a series of existing policies, it still shows that the legal policy of the government in education during the pandemic still prioritizes public health and safety while struggling to maintain the community's right to proper education. the education gap in indonesia has occurred even before the pandemic and with the situation where the spread of covid-19 has not shown a significant decline, this gap and inequality will widen. on that basis, we suggest that the government focus on fulfilling basic facilities and http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(1) 2021 151 available online at http://journal.unnes.ac.id/sju/index.php/jils infrastructure such as electricity and internet networks to support distance learning policies. in addition, the government needs priority and consistency in handling covid-19 cases so that a significant reduction in cases occurs and the education situation can take place back to normal. refferences adnan, m., & anwar, k. 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http://journal.unnes.ac.id/sju/index.php/jils "education without values, as useful as it is, seems rather to make man a more clever devil.” c.s. lewis about authors rizki ramadani is a lecturer at faculty of law universitas muslim indonesia, makasar, indonesia. he obtained the master of laws degree from universitas gadjah mada, yogyakarta indonesia. his area of research interest concerning constitutional law, comparative law, and administrative law. some of his recent publications such as, reformulation of institutional relationship between the people’s representative council and the corruption eradication commission (corruption, 2021), regional head election during covid-19 pandemic: the antinomy in the government policies (yuridika, 2021), and position of supervisory board organ and its implications for the institutional corruption eradication commission (law reform, 2020). yuli adha hamzah is a lecturer at faculty of law universitas muslim indonesia, makasar, indonesia. his area of research interest concerning private and business law. some of his works have been published on several journals, such as, peningkatan kesadaran memakai helm kepada pelajar mts. muhammadiyah tombo–tombolo gunung silanu jeneponto (al tafani: jurnal pengabdian masyarakat, 2021), and analisis yuridis perkawinan dibawah umur melalui kewenangan kantor urusan agama (studi kasus di kua kabupaten bantaeng) (pleno jure, 2020). arianty anggraeni mangerengi a lecturer at faculty of law universitas muslim indonesia, makasar, indonesia. http://journal.unnes.ac.id/sju/index.php/jils https://everydaypower.com/c-s-lewis-quotes/ https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=l80kpjqaaaaj&sortby=pubdate&citation_for_view=l80kpjqaaaaj:zph67rfs4hoc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=l80kpjqaaaaj&sortby=pubdate&citation_for_view=l80kpjqaaaaj:zph67rfs4hoc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=l80kpjqaaaaj&sortby=pubdate&citation_for_view=l80kpjqaaaaj:zph67rfs4hoc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=l80kpjqaaaaj&sortby=pubdate&citation_for_view=l80kpjqaaaaj:5nxa0vek-isc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=l80kpjqaaaaj&sortby=pubdate&citation_for_view=l80kpjqaaaaj:5nxa0vek-isc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=l80kpjqaaaaj&sortby=pubdate&citation_for_view=l80kpjqaaaaj:ufrvopgsrksc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=l80kpjqaaaaj&sortby=pubdate&citation_for_view=l80kpjqaaaaj:ufrvopgsrksc https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=skqzeu4aaaaj&sortby=pubdate&citation_for_view=skqzeu4aaaaj:d1gkvwhdpl0c https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=skqzeu4aaaaj&sortby=pubdate&citation_for_view=skqzeu4aaaaj:d1gkvwhdpl0c https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=skqzeu4aaaaj&sortby=pubdate&citation_for_view=skqzeu4aaaaj:u5hhmvd_uo8c https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=skqzeu4aaaaj&sortby=pubdate&citation_for_view=skqzeu4aaaaj:u5hhmvd_uo8c jils (journal of indonesian legal studies) volume 7(1) 2022 101 available online at http://journal.unnes.ac.id/sju/index.php/jils research article dilemma of dual citizenship issues in indonesia: a legal and political perspective andi agus salim1 , rizaldy anggriawan2 , mohammad hazyar arumbinang3 1,2 universitas muhammadiyah yogyakarta, indonesia 3 melbourne law school, the university of melbourne, australia  andi.agus@umy.ac.id submitted: january 8, 2022 revised: april 21, 2022 accepted: may 30, 2022 abstract the issue of dual citizenships has been in much of the debate over the years. many developed countries such as us, uk, australia, and switzerland have no restrictions on holding dual nationality, whereas countries such as singapore, austria, india, and saudi arabia do not “recognize” or “restrict” dual citizenships, leading to automatic loss of citizenship upon acquiring other. some countries such as austria, spain may still grant dual citizenships upon certain special conditions under exceptional cases like celebrities. the implementation of dual citizenship nowadays is not something strange or unusual things a discourse of justice and legal protection in domestic and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 7 issue 1, june 2022 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0001-5638-817x https://orcid.org/0000-0002-7195-769x https://orcid.org/0000-0002-6563-8588 102 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils internationally. by considering the international environment that is nowadays being wider and no limit, everyone has an easy access to go abroad. in indonesia, the concept of dual citizenship still limited to the children from inter-marriage, while consider the amount of indonesian diaspora in another country this is the time for indonesia to upgrade or revise the citizenship system in indonesia. keywords: citizenship; dual citizenship; indonesian citizenship; advantages and disadvantages of dual citizenship http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 103 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 101 table of contents ……………………………..….………. 103 introduction ………………………………….……………. 104 history of indonesian citizenship system .….….. 108 in the regime of law no. 3 of 1946 history of indonesian citizenship system ………………………………………….. 108 in the regime of the republic of united states of indonesia ……………………………………………………… 111 in the regime of law no. 62 of 1958 ………………………. 114 the citizenship system of indonesia in the era of law no. 12 of 2006 ……….………………………………. 122 the importance of amendment ……………………………. 122 indonesian citizen and citizenship: a legal limitation .. 123 acquisition of indonesian citizenship ……………………. 126 loss of indonesian citizenship ……………………………. 128 case analysis ……………………………….……………… 133 case of archandra tahar …………………………………… 133 case of gloria natapradja hamel …………………………. 136 the concept of dual citizenship system in indonesia …………………………………………………….. 137 advantages & disadvantages of dual citizenship model …………………………………………. 142 the advantages of implementing dual citizenship in indonesia ……………………………………………………… 142 disadvantages of implementing dual citizenship in indonesia ……………………………………………………… 145 conclusion ………………………………………….…..…… 148 references ………………………………………………….… 149 http://journal.unnes.ac.id/sju/index.php/jils 104 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils 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. how to cite: salim, andi agus, rizaldy anggriawan, and mohammad hazyar arumbinang. 2022. “dilemma of dual citizenship issues in indonesia: a legal and political perspective”. jils (journal of indonesian legal studies) 7, no. 1 (2022): 101-154. https://doi.org/10.15294/jils.v7i1.53503. introduction the appointment of arcandra tahar (arcandra) as the minister in ministry of energy and mineral resources (esdm) on july 27th, 2016, lastly bring up the problem that made him to be terminated from his position. president joko widodo (jokowi) must terminate arcandra from his position as a minister due to citizenship issues owned by arcandra. arcandra alleged having dual citizenship namely citizenship of indonesia also citizenship of america. based on the issue jokowi on august 15th, 2016 decide to give an honorable discharge to arcandra from his position. 1 along with citizenship issues being overwritten by arcandra at the same time one of the sacred red and white heirloom flag 1 lily rusna fajriah, catatan sejarah, arcandra menteri dengan masa jabatan terpendek, sindonews.com (2016). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 105 available online at http://journal.unnes.ac.id/sju/index.php/jils hoisting troop (flag hoisting troop) august 17th, 2016, also reported be failed to perform due to her citizenship status. this flag hoisting troop known by the name of gloria natapradja hamel (gloria) also alleged to have dual citizenship, namely indonesia and france. gloria, who was in 16 years, got her citizenship status from the intermarriage of her parents. her mother is indonesian, and her father is french.2 simply, both cases on citizenship above have a strong similarity that is in the position of having dual citizenship. but both of citizenship issues above cannot be equated when we analyze it from the perspective of law no. 12 of 2006 about indonesian citizenship (indonesian citizenship act). these two cases which had happened in august 2016 quite famous and got more attention from the society. the dual citizenship issues of arcandra invited the society to have their own argument in this issue. arcandra which was considered as the asset of this country who has a very good potential and qualification to change and develop this country being stopped to contribute and give a hand to this country because of the dual citizenship status owned by arcandra. when we analyze this issue in a wider perspective, indonesia should learn a lesson from those problems for the better future. the case of arcandra can be the first lesson where the indonesian diaspora that have a very good qualification and potential being stopped to contribute to developing this country only because of dual citizenship issues. to anticipate this issue reoccurs, indonesian government needs to discuss deeply on the citizenship system applied in indonesia. whether the citizenship system applied in indonesia 2 taufiqurrohman, polemik kewarganegaraan gloria natapradja, ibunda mengaku lalai, liputan6.com (2016). http://journal.unnes.ac.id/sju/index.php/jils 106 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils recently is the best one to accommodate the citizens of indonesia and the indonesian diaspora abroad. when we look at the citizenship system which is applied in indonesia, it will strongly relate to the indonesian citizenship act. in 1945 constitution, article 26 states that citizens are those who are indigenous indonesians and persons of foreign origin who are legalized as citizens in accordance with the law. in indonesian citizenship act in article 1 also explains on who the citizens of indonesia are. concerning on dual citizenship, the law explained that indonesia recognizes only limited dual citizenship. it means that dual citizenship is only valid for the children who are born from intermarriage, where the mother is foreign, and the father is indonesian or vice versa. enabling dual citizenship in indonesian citizenship act is intended to protect any children born from intermarriage where the child will be required to choose one nationality if he/she has reached the age of 18 years. the implementation of dual citizenship nowadays is not something strange or unusual things internationally. by considering the international environment that is nowadays being wider and no limit, everyone has an easy access to go abroad. citizen of one country nowadays commonly leave their country for looking a job, education, doing research and other similar purposes. it happens also to the citizens of indonesia where they go abroad for looking a job, education, doing research, and other needs. sometimes some of them miss their indonesian citizenship because they have to change their citizenship status to get more access they need in that country. it is truly bad for indonesia. indonesia loses their potential citizens or potential generation for contribute to the development of the country. the data from the indonesian diaspora network (idn) show the number of indonesian nation whether they are still indonesian citizen http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 107 available online at http://journal.unnes.ac.id/sju/index.php/jils or not citizen of indonesia who are a part of the idn reach a number of 8 billion people. 3 its number is not big as like as the number of diasporas owned by china and india, but if indonesia can maximize the utilization of this indonesian diaspora surely, it would greatly assist indonesia in its development. the application of dual citizenship in indonesia will give big influences on indonesia. through the application of dual citizenship, the whole of indonesian people abroad can contribute more to the development of indonesia. it makes the indonesia government consider more about the application of dual citizenship in indonesia. therefore, through this article, the author attempts to analyze the reasons for indonesia in retaining the concept of single citizenship in indonesia? and author would also show the advantages and disadvantages in applying dual citizenship system in indonesia in order to be the consideration for the indonesia government in improving the citizenship system in indonesia. this research is normative legal research which is based on the library research, focusing on reading and analysis of the primary and secondary materials. 4 the author collected the data from library to finding the regulation and theory related to the object of research. in order to find another information needed, the author collected the data from the articles, news, magazines, and other supporting media. all the collected data were analyzed through descriptive qualitative. this means that the author analyzed the data by describing all collected data and relate all the data to the related legislation and apply all the collected data into the case study. the data also were analyzed through reduction of data. the author classified, directed, disposed of unnecessary data and organized the data so that the final conclusion could be drawn. 3 indonesian diaspora network, about indonesia diaspora network (2016). 4 johnny ibrahim, teori dan metode penelitian hukum normatif (2006). http://journal.unnes.ac.id/sju/index.php/jils 108 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils history of indonesian citizenship system after the independence of indonesia, the issue relating to the citizenship in indonesia was regulated under the constitution of indonesia and also legislation. the 1945 constitution about citizens of indonesia was mentioned that citizens shall consist of indigenous indonesian peoples and persons of foreign origin who have been legalized as citizens in accordance with law. 5 from that article has not been able to determine who are considered an indonesian citizen, the article requires further regulation of citizenship regulated by law. nine months after the independent of indonesia precisely on april 10, 1946, the indonesian government began to form a special law that regulated the citizenship system in indonesia, namely law no. 3 year 1946 on citizens and residents of the state. 6 in the history, law concerning of citizenship system in indonesia was changed for several times. they cover: 1. law no. 3 of 1946 about state citizen and citizenship 2. law no. 62 of 1958 about indonesian citizenship 3. law no. 12 of 2006 about indonesian citizenship in the regime of law no. 3 of 1946 history of indonesian citizenship system the first regulation which was concerned on the citizenship system in indonesia started from april 10, 1946, by promulgation of the law no. 3 year 1946. this law was agreed by the government of 5 article 26 of indonesian 1945 constitution. 6 noor m aziz, laporan kompendium hukum bidang kewarganegaraan (2011). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 109 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesia and working committee central indonesian national committee (bp knip). but on february 27, 1947, the government of indonesia by approval from bp knip issued law no. 6 of 1947 about the changes in the law no. 3 of 1946. through the law no. 6 of 1947, there were some changes in the law no. 3 of 1946. the fundamental alteration was the law no. 3 of 1946 that was declared retroactive since august 17, 1945.7 the law no. 3 year 1946 in conjunction with law no. 6 of 1947 was then enhanced into law no. 3 of 1946 with some changes from law no. 6 of 1947. 8 moreover, in 1947 the government also issued law no 8 of 1947 and law no. 11 of 1948 in order to extend the time for using the right of repudiation.9 in line with the mandate from the 1945 constitution, law no. 3 year 1946 regulated about state citizen and citizenship of indonesia. this law covers some aspects as the followings: 1. who are the citizens and resident of indonesia? basically, in this law, the term of citizen and resident are different. based on law no. 3 of 1946 citizen are: (a) the origin indonesian within the territory of indonesia; (b) anyone who does not belong to the above group but derives from a member of that group and is born, domiciled and residence within the territory of indonesia, and the persons who do not come from the intended group, born and domiciled and resident for at least 5 consecutive years most recently within the territory of the state of indonesia, who is 21 years old or has married; (c) people who get the citizenship of the indonesia by naturalization; (d) legal or legalized children by his 7 id. 8 winarno, kewarganegaraan indonesia dari sosiologis menuju yuridis (2009). 9 amalia diamantina, protection to child citizenship right in mixed marriage in indonesia, 4 south east asia journal of contemporary business, economics and law 29–33 (2014). http://journal.unnes.ac.id/sju/index.php/jils 110 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils father, who at the time of the birth of his father has the citizenship of the state of indonesia; (e) a child born within 300 days after his father, who has the citizenship of indonesia, dies; (f) a child only whose mother is recognized in a legitimate way, which at the time of the birth of his mother has the citizenship of indonesia; (g) a child who was appointed in a legal manner by an indonesian citizen; (h) a child born in the territory of the state of indonesia, whose father or mother is not recognized in a legal manner; (i) children born in the territory of the state of indonesia, who is not known who his parents or the citizenship of his parents country; (j) the corporation or institution established based on applied law of the republic of indonesia and domiciled within the territory of the state of indonesia.10 while, about resident of indonesia was also mentioned in these laws. residents of indonesia are the people who stay in indonesia at least 1 year consecutively. the status of resident of indonesia will be lost when they live outside of indonesia.11 2. status of wife’s citizenship the status of wife’s citizenship in this law based on law no. 3 of 1946 was that a woman during the marriage followed her husband's citizenship. changes or statements to change the status of citizenship cannot be done by a wife but must be done by her husband. 12 3. loss and acquiring of indonesian citizenship this law also regulated about lost and regain the citizenship of indonesia. based on law no. 3 of 1946, the citizenship of a father or mother automatically applies to his legitimate son, who is not yet 21 years old and not married. also, for a widow who get 10 article 1 of law no. 3 of 1946 11 article 14 of law no. 3 of 1946 12 article 2 of law no. 3 of 1946 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 111 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesian citizenship by naturalization, will automatically apply to her legitimate child, who is not yet 21 years old and not married. 13 whereas for the loss of citizenship, there are some aspects that can be the causes for losing the citizenship, they are (a) obtaining citizenship from another state, (b) does not get the president's permission to enter into the army or civil servant of another state and (c) woman who marriage with foreigner.14 basically, there are two ways or systems for a person to gain or lose the citizenship status of the country. first, the person actively seeks to obtain or renounce his nationality, which is commonly known as an active stelsel. conversely, a person obtains or loses his citizenship status without any legal action, which commonly known as passive stelsel. in the regime of the republic of united states of indonesia on january 1st 1950, the united states of indonesia officially organized the country based on the new constitution which was called as the 1949 federal constitution. this change began with a round table conference held in den hag on august 23 to november 2 1949. 15 the changes which had happened in indonesia in 1950 in order to gain the recognition of indonesia's sovereignty from the dutch kingdom brought up other changes in term of the system, law and also the citizenship system in indonesia at the time. 13 article 3 law no. 3 of 1946 14 winarno, supra note 8. 15 r abdoel djamali, pengantar hukum indonesia (2012). http://journal.unnes.ac.id/sju/index.php/jils 112 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils the transformation of the form of the indonesia from unitary state to the federal state also changed the main basis of indonesia. previously 1945 constitution was the main basis of indonesia but since the transformation of indonesia to be federal state the main basis of indonesia also changed to be 1949 federal constitution. in the new constitution, the issue of citizenship was stated in the article 5 and article 194 1949 federal constitution. the article 5 paragraph 1 stated that concerning on the regulation of the citizenship would be regulated in the federal law. but in its journey, the federal laws referred to in article 5 paragraph 1 of the constitution of the republic of the united states of indonesia never exist. 16 at that time the citizenship system in indonesia was based on article 194 of 1949 federal constitution which determined that while waiting for citizenship arrangements with the legislation referred to in article 5, paragraph 1, then those who are already citizens of the united states of indonesia, are those who have the nationalities in accordance with the agreement on the determination of citizenship which is attached to the charter on the agreement regarding distribution of citizenship. 17 the article 194 of the 1949 federal constitution is a charter on the agreement regarding distribution of citizenship that was resulted from round table conference held in the hague as published in state gazette 1950 number 2. according to this agreement, all dutch citizens remained the holder of their dutch nationality. however, if they were born or had been living in indonesia for at least six months, they had the right to obtain for indonesian citizenship within two years after the recognition of indonesian independence. approximately 70 million dutch subjects, non-dutch citizens, would become indonesian 16 aziz, supra note 6. 17 article 194 of 1949 federal constitution of the united state of indonesia http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 113 available online at http://journal.unnes.ac.id/sju/index.php/jils citizens and lose their former status. the agreement stated that the use of the right to obtain or to renounce should be carried out within two years, from 27 december 1949 to 27 december 1951. as it is known that in the results of the round table conference has been stipulated the agreement on the distribution of citizens (state gazette 1950 number 2) in 3 important matters: 18 1. the dutch who continued to uphold dutch citizenship, against this dutch person who was born in indonesia or resided in indonesia at least 6 (six) months prior to 27 december 1949. within 2 (two) years after the transfer of sovereignty, might declare the election of indonesian citizenship. in this case, the dutch descendants obtained indonesian citizenship by using the option right and they obtained an active indonesian citizenship. 2. persons classified as dutch citizens of indigenous indonesians, residing in indonesia obtaining indonesian citizenship, except those residing in suriname or the netherlands antilles, within a specified time may elect dutch citizens. 3. the people who were according to the dutch east indies legal system belonged to the foreign east-the dutch foreigners who were not dutch, were known as arabs and chinese. against these people there were several possibilities: a. if residing in indonesia, they obtain indonesian citizenship (article 5). b. if residing in the kingdom of the netherlands, they are still dutch citizens (article 6). the existence of this citizenship agreement indicates that since the enactment of the regulation, the matter concerning the regulation of citizenship in indonesia refers to the new regulation. when we observed further, the approval of the distribution of citizens is not 18 aziz, supra note 6. http://journal.unnes.ac.id/sju/index.php/jils 114 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils enough in answering the reality in the society. moreover, the article 5 paragraph 1 stated that the concerning on the citizenship is regulated in special regulations or the federal law. it implies that law no. 3 year 1946 is no longer valid. this condition made the citizenship system at that time faced many problems. one of them was for the children who were born at the time of indonesia turning into a federal state, precisely on december 27, 1949, because the child was not included in the agreement on the distribution of citizenship. it also happened to the foreigners who were not from the netherlands but from other european and eastern foreigners. they were also not listed in the agreement on the division of citizenship, so that for these people did not have a clear citizenship at the time. however, the 1949 agreement was only applied for six months. on 17 august 1950, the indonesian government unilaterally announced the replacement of the 1949 federal constitution by the 1950 temporary constitution, which changed the institutional form of the state from federal to unitary. the 1950 temporary constitution stipulated two important criteria of being indonesian citizens, namely: 19 1. those who were the holder of indonesian citizenship based on the 1949 agreement, and 2. those who had not yet opted for their citizenship based on the 1949 agreement but were indonesian citizens according to the existing law at the time. in the regime of law no. 62 of 1958 in 1951 indonesia returned to the unitary state. the returning of indonesia into the unitary state caused indonesia adjusting the system 19 (article 144 of indonesian 1950 temporary constitution) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 115 available online at http://journal.unnes.ac.id/sju/index.php/jils that has been changed from 1949 to 1950. the changes of system gave many impacts in terms of the application of laws in indonesia and not excluding laws governing citizenship. the problems that arose in citizenship arrangements in indonesia during the united state of indonesia’s period required indonesia to reorganize the applicable citizenship system in indonesia. therefore, based on articles 5 and 144 and article 89 of the provisional constitution (undang-undang dasar sementara, hereinafter as uuds), law no. 62 of 1958 was issued and came into force since its enactment on august 1, 1958. the main principle used in law no. 62 of 1958 was ius sanguinis which means that one's nationality is based on descent. this principle is clearly seen in the few articles of governing citizenship obtained by a child from his parents. but in some circumstances, this law prevented someone from becoming apatride. this law also applies the principle of ius soli which is seen in article 1 letter f, g, h and i, such as:20 1. those born within the territory of the republic of indonesia as long as both parents are unknown; 2. a child found within the territory of the republic of indonesia as long as both parents are unknown; 3. persons who are born within the territory of the republic of indonesia, if both parents have no nationality or as long as the nationality of both parents is unknown; 20 winarno, supra note 8. in the further context, citizenship issues have also become a long discussion in human rights studies, even in practice in several countries, the concept of citizenship has different practices. for further comparison, please also see mohammed tahmidul islam, md. tuhin mia, and mazharul islam, the right to nationality and repatriation under international law: a study on biharis in bangladesh, 6 jils (journal of indonesian legal studies) 251-278 (2021); dicky febrian ceswara, and puji wiyatno., implementasi nilai hak asasi manusia dalam sila pancasila, 2 lex scientia law review 227-241 (2018). http://journal.unnes.ac.id/sju/index.php/jils 116 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils 4. persons born within the territory of the republic of indonesia who have not acquired the nationality of the father or mother at the time of their birth and as long as they do not acquire the nationality of either their father or mother; the presence of a new specific law which is regulating the citizenship is expected to solve all the problems of citizenship that has occurred or will happen in the future. obviously, this law is not much different from the previous special law which is concerned on the issue of citizenship in indonesia namely law no. 3 of 1946. in order to fulfill the need of society, the law no. 62 of 1958 covers some aspects. this provision stipulated and highlighted concerning whom are the citizens and resident of republic of indonesia, as follows: 21 1. persons who, based on the legislation and/or treaties and/or regulations prevailing since the august 17, 1945 proclamation, are already citizens of the republic of indonesia. 2. persons who at their birth have a legal family relationship with their father, a citizen of the republic of indonesia, with the understanding that said citizenship of the republic of indonesia starts as from the existence of that legal family relationship and that said legal family relationship is created before the persons concerned have reached the age of 18 or before they are married at an earlier age. 3. a child born within 300 days after the decease of its father, if said father is a citizen of the republic of indonesia at the time of his death. 4. persons whose mother is a citizen of the republic of indonesia at their birth, if at that time they have no legal family relationship with their father. 21 article 1 of law no. 62 of 1958. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 117 available online at http://journal.unnes.ac.id/sju/index.php/jils 5. persons whose mother is a citizen of the republic of indonesia at their birth, if their father has no nationality, or as long as the nationality of the father is unknown. 6. those born within the territory of the republic of indonesia as long as both parents are unknown. 7. a child found within the territory of the republic of indonesia as long as both parents are unknown. 8. persons who are born within the territory of the republic of indonesia, if both parents have no nationality or as long as the nationality of both parents is unknown. 9. persons born within the territory of the republic of indonesia who have not acquired the nationality of the father or mother at the time of their birth and as long as they do not acquire the nationality of either their father or mother. 10. persons who have acquired the citizenship of the republic of indonesia according to the regulations of this law. this provision also recognizes the term naturalization that can be used by foreign citizens to become indonesian citizens. as stated in the law that the citizenship of the republic of indonesia because of naturalization is acquired with the validity of the decree of the minister of justice who grants this naturalization. 22 this indicates that indonesia provides an opportunity for those foreign nationals who wish to obtain indonesian citizenship. however, it is certainly accompanied by certain terms and conditions as stated in the next chapter. in order to present a petition for naturalization, the petitioner shall: 23 1. have reached the age of 21; 22 article 5 paragraph 1 of law no. 62 of 1958 23 article 5 paragraph 2 of law no. 62 of 1958 http://journal.unnes.ac.id/sju/index.php/jils 118 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. be born within the territory of the republic of indonesia or at the time of presenting the petition be domiciled in said region for at least the last 5 consecutive years or in total 10 inconsecutive years; 3. if the person is a married man–obtain the approval of his wife; 4. master the indonesian language properly and have appropriate knowledge of the history of indonesia and have never been penalized because of having committed an offence which harms the republic of indonesia; 5. be in a spiritual and physical healthy condition; 6. pay to the state's treasury an amount between idr.500,-to idr.10.000,of which the amount is fixed by the tax office at the residence of the petitioner, based on the evident petitioner's monthly earnings, with the stipulation that it may not exceed the evident earnings for one month; 7. have a fixed income; 8. have no nationality, or have lost his nationality if the petitioner acquires the citizenship of the republic of indonesia or states at the time to have released another nationality according to the legal provisions of the country of origin or according to the legal provisions of the agreement on the settlement of the binationality between the republic of indonesia and the country concerned. whether the application for citizenship is accepted or rejected, it depends on the decision from the minister of justice with the approval of the cabinet council.24 if the petition for naturalization is rejected, the petitioner may send in a repeat petition.25 other than through application for naturalization, citizenship of indonesia may also be granted to foreigner with several reasons. as stated in the law that naturalization may also be granted for the 24 article 5 paragraph 4 of law no. 62 of 1958 25 article 5 of law no. 62 of 1958 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 119 available online at http://journal.unnes.ac.id/sju/index.php/jils interest of the state or because of services rendered to the state, by the government with the approval of parliament.26 another way for acquiring citizenship of indonesia may be through marriage.27 but through marriage, the woman of indonesian citizens may also loss their citizenship if and when she makes a statement as to that effect within one year after her marriage has been contracted except if, with the loss of the citizenship of the republic of indonesia, she becomes stateless.28 regarding on the loss of indonesian citizenship, it was also regulated in this law. citizenship of the republic of indonesia lost because of:29 1. acquiring another nationality out of one's own free will, with the understanding that if the person concerned is, at the time that said other nationality is acquired, in the territory of the republic of indonesia, the citizenship of the republic of indonesia is only considered lost if the minister of justice declares it lost with the approval of the cabinet council on its own initiative or on the request of the person concerned. 26 article 6 of law no. 62 of 1958 27 article 7 of law no. 62 of 1958 28 article 8 of law no. 62 of 1958. in the context of practices, many problems arise along with the development of society where for almost half a century the regulation of citizenship in mixed marriages between indonesian citizens and foreign nationals is regulated in law no. 62 of 1958 concerning indonesian citizenship. however, as time went on, law no. 62 of 1958 concerning indonesian citizenship was no longer able to respond to developments in society because it was considered too discriminatory and did not provide legal protection, especially legal protection for wives and children. see also setiaji, mukhamad luthfan, and aminullah ibrahim, kajian hak asasi manusia dalam negara the rule of law: antara hukum progresif dan hukum positif, 2 lex scientia law review 123-138 (2018); ridwan arifin, revealing the other side of human rights issue: how we look to the existed various problems, 2 jils (journal of indonesian legal studies) 79-82 (2017). 29 article 17 of law no. 62 of 1958 http://journal.unnes.ac.id/sju/index.php/jils 120 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. not having rejected or having released another nationality whilst the person concerned has had the opportunity as to that effect. 3. being recognized by an alien as his/her child if the person concerned has not reached the age of 18 and is not married yet and does not become stateless with the loss of the citizenship of the republic of indonesia. 4. being legally adopted by an alien as his/her child if the child concerned has not reached the age of 5 yet and it does not become stateless at the loss of the citizenship of the republic of indonesia. 5. being declared as lost by the minister of justice with the approval of the cabinet council on the request of the person concerned if the person has reached the age of 21, is domiciled abroad and does not become stateless at the declaration of the citizenship of the republic of indonesia as being lost. 6. entering a foreign military service without prior permission from the minister of justice. 7. without prior permission form the minister of justice, entering a foreign state's service or the services of an organization of nations not entered by the republic of indonesia as member, if the position held in the state's service may, according to the regulations of the republic of indonesia, only be held by a citizen or the position in said nation organization service requires on oath or official promise. 8. taking the oath or making the promise of loyalty to a foreign country or a part thereof. 9. without being obliged, participating in a vote for one and another of constitutional nature for a foreign country. 10. having a passport or certificate which has the character of a passport from a foreign country in one's name which is still valid. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 121 available online at http://journal.unnes.ac.id/sju/index.php/jils 11. other than for state's service, domiciling abroad during five consecutive years by not declaring one's wish as to continue being a citizen before the period has lapsed and thereafter every two years; such a wish shall be declared to the representation of the republic of indonesia at one's residence. anything mentioned in the article 17 above, the implementation is excepted for those who have not reached the age of 18 yet, except if they are married, the five and two years' period mentioned above is applicable as of the date that he reaches the age of 18. however, if we see further, in regulating the matter of citizenship, basically there are still some problems and shortcomings inside the law no. 62 of 1958. these problems include the lack of attention to women's rights, so it’s like there is discrimination between men and women. this can be seen clearly in determining the nationality of a child born of intermarriage or not allowing a woman in marriage to apply for a citizen. law no. 62 of 1958 does not give full right for women in determining citizenship status either for themselves or for their children. this is because law no. 62 of 1958 applies the principle of citizenship ius sanguinis which in determining the nationality of a child resulted from mixed marriage determined based on a familial legal relationship with his parents which are more emphasized on civil relationships with his father. 30 furthermore, the above mentioned is essentially contrary to the convention on the elimination of all forms of discrimination against women (cedaw) which clearly stated that: (1) states parties shall grant women equal rights with men to acquire, change or retain their nationality. they shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall 30 article 1 letter b of law no. 62 of 1958 http://journal.unnes.ac.id/sju/index.php/jils 122 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband. (2) states parties shall grant women equal rights with men with respect to the nationality of their children. 31 the citizenship system of indonesia in the era of law no. 12 of 2006 the importance of amendment after a few changes of regulation of citizenship system in indonesia, nowadays indonesia applies the law no. 12 of 2006 about indonesia citizenship system. law no. 12 of 2006 is valid since the enactment on august 1, 2006. law no. 12 of 2006 changes the law no. 62 of 1958 about the citizenship of indonesia. based on consideration on law no. 12 of 2006, it is necessary to amendment the regulation of citizenship system in indonesia, because the law no. 62 of 1958 is no longer appropriate with the development of society and the constitution of the republic of indonesia. the importance of amendment of law no. 62 of 1958 can also be reviewed from several aspects, namely: 32 1. philosophical aspect philosophically, inside of law no. 62 of 1958 there are some provisions which are not in line with the values pancasila as the basis of the state. they are the law no 62 of 1958 discriminatory 31 (article 9 of convention on the elimination of all forms of discrimination against women) 32 winarno, supra note 8. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 123 available online at http://journal.unnes.ac.id/sju/index.php/jils in nature, less of protection of human rights and equality between the people, and lack of guarantees for the fulfillment of human rights and equality between citizens, and less protection of women and children. 2. juridical aspect juridically, the constitutional basis for the formulation of the law is the temporary constitution 1950 which has been inapplicable since july 5, 1959 and back to the 1945 constitution of the republic of indonesia. in its development, the constitution of 1945 has been changed many times which has more attention to the human rights and citizens' rights. 3. sociological aspects sociologically, the act is no longer in accordance with the development and the needs of indonesian society as part of the international community in the global association, which requires equality of treatment and status of citizens before the law and the existence of gender equality. from the theree aspects above, it can be seen that indonesia should have a new regulation that regulates the issue of citizenship in indonesia. so, since the enactment of law no. 12 of 2006, all previous legislation governing citizenship in indonesia by itself does not apply. this is in accordance with the principle of legislation that is the principle of lex posteriori derogate lex priori. indonesian citizen and citizenship: a legal limitation in accordance with article 1 of law no. 12 of 2006 that citizenship is all matters relating to citizens, therefore citizenship covers several aspects such as: http://journal.unnes.ac.id/sju/index.php/jils 124 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils 1. who are the citizenship of indonesia. 2. requirements and procedures of obtaining the citizenship of the indonesian. 3. the loss of the indonesian citizenship. 4. requirements and procedures of regaining the indonesian citizenship 5. thus, law no. 12 of 2006 contains several aspects that are needed in organizing citizenship in indonesia, among others: a. who are the citizenship of indonesia. b. requirement and procedures of obtaining the citizenship of the indonesian. c. the loss of the indonesian citizenship. d. requirements and procedure of regaining the indonesian citizenship e. provisions for criminal acts based on law no. 12 of 2006, the meaning of a citizen is a citizen of a state is the citizen of a certain state as determined by law.33 therefore in the next article the law emphasize that indonesian citizens are native indonesian people and other nationalities who are formally legalized under law as citizens of the republic of indonesia.34 the definition of “native indonesian people” stipulates that indonesians entitled to be citizens of the republic of indonesia are people whom from birth have never acknowledged any other citizenship at their own volition. 35 while the meaning of citizens of indonesia who are the people of other nations are those who obtain indonesian citizenship through a citizenship based on applicable laws and regulations. 36 33 article 1 paragraph 1 law no. 12 of 2006 34 article 2 of law no. 12 of 2006 35 article 2 of article by article explanation of law no. 12 of 2006 36 aziz, supra note 6. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 125 available online at http://journal.unnes.ac.id/sju/index.php/jils from the above understanding of indigenous people of indonesia, it can be concluded that the formation of law no. 12 of 2006 is intended to prevent the occurrence of apatride or stateless against a person. this is supported by the application of the principle of ius soli, or the nationality based on the place of birth, so that all children born in indonesia will become the nation of indonesia and or the citizens of indonesia. then for further explanation about who the citizens of indonesia, law no. 12 of 200637 explained that a citizen of the republic of indonesia is: a. all persons whom by law and/or based on agreements between the government of the rep. of indonesia and other countries prior to the application of this decree have already become citizens of the rep. of indonesia; b. children born through legal wedlock from an indonesian father and mother; c. children born through legal wedlock from an indonesian father and an alien mother; d. children born through legal wedlock from an alien father and an indonesian mother; e. children born through legal wedlock from an indonesian mother and a stateless father or whose country does not provide automatic citizenship to their offspring; f. children born within 300 (three hundred) days after the father has passed away, under legal wedlock, and whose father is an indonesian citizen; g. children born out of legal wedlock from an indonesian mother; h. children born out of legal wedlock from an alien mother who is claimed by the indonesian father as his natural child and such 37 article 4 of law no. 12 of 2006 http://journal.unnes.ac.id/sju/index.php/jils 126 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils claim is declared before the child reaches the age of 18 (eighteen) or before the child has married; w.parlemen.net i. children born in indonesian territory whose parents are of undetermined citizenship at the time of the child’s birth; j. children newly born and found in indonesian territory and whose parents are undetermined; k. children born in indonesian territory whom at the time of birth both parents were stateless or whose whereabouts are undetermined; l. children born outside the republic of indonesia from an indonesian father and mother whom due to law prevailing in the country of birth automatically provides citizenship to the child; m. children born from a father and mother who was granted citizenship and died before the parents had sworn their allegiance. therefore, then the subject of who becomes an indonesian citizen based on law no. 12 of 2006 has been clear. acquisition of indonesian citizenship another subject in this law is regarding on the acquisition of indonesian citizenship. in addition to the native people of indonesia, people of other nations who want to obtain indonesian citizenship are also regulated in law no. 12 year 2006 in chapter 3 of the law. the process of obtaining such citizenship generally can be divided into 4 ways, i.e.: 38 1. by application 38 winarno, supra note 8. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 127 available online at http://journal.unnes.ac.id/sju/index.php/jils process of acquiring the indonesian citizenship through application requires the applicant to fulfill the requirements as listed in the article 9 law no. 12 of 2006, namely: a. being 18 (eighteen) years old or married; b. at the time of forwarding the application, the applicant has resided in indonesian territory for at least 5 (five) consecutive years or at least 10 (ten) years intermittently; c. having sound in health and mind; d. being able to speak bahasa indonesia and acknowledge the state basic principles of pancasila and the 1945 constitution; e. being never legally prosecuted due to acts of crime and sentenced jail for 1 (one) year or more; f. upon acquiring indonesian citizenship, relinquishing any other citizenship; g. employed and/or has a steady income; and h. paying a naturalization fee to the government treasury. 2. by declaration as mentioned in the article 19 of law no. 12 of 2006, foreign citizens legally married to indonesian citizens may acquire indonesian citizenship by declaring citizenship in front of the official. such declaration as mentioned may be carried out if the incumbent has already resided in indonesia for a minimum of 5 (five) consecutive years or at least 10 (ten) year intermittently, unless the acquisition of such citizenship shall render them with double citizenship.39 3. by awarding the article 20 of law no. 12 of 2006 declared that alien persons deserving merit for services to the rep. of indonesia or for the country’s best interests may be given indonesian 39 article 19 of law no. 12 of 2006 http://journal.unnes.ac.id/sju/index.php/jils 128 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils citizenship by the president after receiving the deliberations of the people representative council, unless the granting of such citizenship shall result in double citizenship to the said person. 40 the definition of “alien persons deserving merit for services to the rep. of indonesia" refers to foreign citizens who because of their outstanding contributions to humanity, science and technology, culture, environment, and sports have enhanced the nation’s status. the definition of “alien persons may be given indonesian citizenship for the country’s best interests” referring to foreign citizens who are considered by the country of having and being able to give outstanding benefit towards the nation’s sovereignty and enhancing the country’s progress, especially indonesia’s economy. 41 4. by declaration for choosing acquiring indonesian citizenship by declaration for choosing is valid only for the child who at least 18 years old or married and was recognized as indonesian citizen in the previous, as mentioned in the article 4 and 5 in this law regarding on who the citizens of indonesia are. loss of indonesian citizenship in addition to the issue of gaining the citizenship of indonesia, the matters of loss of indonesian citizenship also discussed in this law. basically, the loss of a nationality means that the person's rights and duties to the country also lost. 42 the loss of citizenship status of the person leads into the breakup of a citizen's relationship with his 40 article 20 of law no. 12 of 2006 41 explanation of article 20 of law no. 12 of 2006 42 emmy wulandari, perolehan kembali status kewarganegaraan yang hilang berdasarkan undang-undang kewarganegaraan, 29 yuridika 299–309 (2014). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 129 available online at http://journal.unnes.ac.id/sju/index.php/jils country. there are several causes for a person to lose citizenship, among others: 1. renunciation, i.e. voluntary action to leave one of two or more citizenship status hold from two or more countries. 2. termination, namely termination of citizenship status as a legal action because the person has another nationality from another country. 3. deprivation, i.e. revocation or forcible termination or dismissal of citizenship status pursuant to the command competent authority due to the existence of error or violation in obtaining citizenship status. 43 the loss of citizenship was also mentioned in law no. 12 of 2006 which stated that an indonesian citizen will lose their citizenship due to the following:44 a. acquires another citizenship voluntarily; b. will not refuse or will not relinquish other citizenship when the incumbent has the opportunity to do so; c. is declared of having relinquished their citizenship by the president at their voluntary request, the person is aged above 18 (eighteen) or has married, is living abroad, and with the relinquishment of their citizenship does not become stateless because of it; d. has entered into foreign military service without prior approval from the president; e. has voluntarily entered into the services of foreign entities in a position where by law, such a position in indonesia is only reserved for citizens of the republic of indonesia; f. has voluntarily declared allegiance to a foreign country or part of the said foreign country; 43 jimly asshiddiqie, pengantar ilmu hukum tata negara jilid ii (2006). 44 article 23 of law no. 12 of 2006 http://journal.unnes.ac.id/sju/index.php/jils 130 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils g. was not obligated but has voluntarily participated in a referendum that is civic in nature for a foreign country; h. possesses a passport or travel document equivalent to a passport from a foreign country or a letter that may be construed as a valid citizenship identity from another country on his/her name; or i. living outside the territories of the rep. of indonesia for 5 (five) consecutive years for non-official purposes, without legal reason and deliberately refuses to declare their intention to remain as indonesian citizens before the 5 (five) year limit ends, and in each of the next 5 (five) years the said person fails to declare their intention of retaining their citizenship to the indonesian representative offices in which the said person’s residence is under their jurisdiction although the said representative office has duly informed them in writing, as long as the incumbent does not become stateless because of such negligence. besides the article 23, loss of citizenship is also mentioned in another article, specifically in term of marriage: 45 (1). female citizens of the republic of indonesia who marry male citizens of foreign nationality will automatically lose their indonesian citizenship if by law of her husband’s country, the citizenship of the wife will follow that of the husband as a result of their union; (2). male citizens of the republic of indonesia who marry female citizens of foreign nationality will automatically lose their indonesian citizenship if by law of his wife’s country, the citizenship of the husband will follow that of the wife as a result of their union; also in the article 28, a person acquiring indonesian citizenship based on further information to be proved false or forged, not valid, or due to discrepancies made by an authorized institution, is declared void and their citizenship is annulled. 45 article 26 of law no. 12 of 2006 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 131 available online at http://journal.unnes.ac.id/sju/index.php/jils a person who has lost their indonesian citizenship may regain their citizenship through naturalization procedures as stipulated in articles 9 to article 18 and article 22. 46 except for those who lost their citizenship due to the matters contained in article 23 letter i and article 26 paragraph 1 and paragraph 2, the applicant does not need to go through the procedures referred to in articles 9 to 17. 47 regarding the procedure of obtaining citizenship, loss of citizenship and regaining indonesian citizenship is further stipulated in government regulation no. 2 of 2007 on the procedure of obtaining, losing, cancellation, and reclaiming indonesian citizenship. the existence of government regulation no. 2 of 2007 is in order to carry out the mandate of article 22, article 30 and article 35 law no. 12 of 2006 as it sounds: 48 a. article 22 further provisions on procedures for acquiring indonesian citizenship is administered by the government regulation. b. article 30 further provisions on requirements and procedures for the loss and annulment of indonesian citizenship are provided in the government regulations. c. article 35 further provisions on the requirements and procedures for regaining indonesian citizenship are provided in the government regulations. the provisions for criminal acts, in this law are regulated in the article 36 until 38: article 36 (1) failure by officials whom due to their negligence to perform their appointed duties and responsibilities as 46 article 31 of law no. 12 of 2006 47 article 32 paragraph 1 of law no. 12 of 2006 48 winarno, supra note 8. http://journal.unnes.ac.id/sju/index.php/jils 132 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils mentioned in this decree causing the loss of a person’s right to acquire or regain and/or lose their indonesian citizenship is punishable by 1 (one) year incarceration in jail. (2) deliberate acts of crime as mentioned in paragraph (1) is punishable by 3 (three) years incarceration in jail. article 37 (1) submit false letters or documents by forging the said letters and documents to acquire indonesian citizenship or regain indonesian citizenship is punishable by at least 1 (one) year incarceration in jail and a maximum of 4 (four) years in incarceration in jail and is subjected to a fine of at least idr 250.000.000,00 (two hundred and fifty million rupiahs) and a maximum fine of idr 1.000.000.000,00 (one billion rupiah). (2) persons who deliberately use false information, including false information under oath, (submit false letters or documents by forging the said letters and documents to acquire indonesian citizenship or regain indonesian citizenship is punishable by at least 1 (one) year incarceration in jail and a maximum of 4 (four) years in incarceration in jail and is subjected to a fine of at least idr 250.000.000,00 (two hundred and fifty million rupiahs) and a maximum fine of idr 1.000.000.000,00 (one billion rupiah). article 38 (1) in the event that such crime as stipulated in article 37 is done by a corporate, criminal punishment is applied to the corporate and/or management acting on behalf and for the corporation. (2) the corporate as mentioned in paragraph (1) is punishable by a criminal fine of at least idr 1.000, 000.000,00 (one billion rupiah) and a maximum of idr 5.000.000.000,00 (five billion rupiah) and their license is thereby withdrawn. (3) the corporate management as mentioned in paragraph (1) is punished to at least 1 (one) year to 5 (five) years’ incarceration in jail and is fined by at least idr 1.000.000.000,00 (one billion rupiah) to a maximum amount of idr 5.000.000.000,00 (five billion rupiah). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 133 available online at http://journal.unnes.ac.id/sju/index.php/jils case analysis case of archandra tahar archandra tahar (arcandra) was graduated from institut teknologi bandung (itb) in 1994. he continued for master study in texas a&m university in the field of ocean engineering since 1996 until 1998 and in 2001 he finished the doctoral philosophy in texas a&m university in the field of ocean engineering. since in the united states, arcandra has worked in many places. on july 27th, 2016, arcandra was appointed as a minister in the indonesian ministry of energy and mineral resources. previously, before he is appointed as the minister, he was worked as president in petroneering houston company in texas since 2013. this company was concerned in the field of oil and energy. 49 the appointment of arcandra as the minister brought up the problem since 13rd august, 2016 due to the problem of dual citizenship. arcandra had been reported holding a dual citizenship status from indonesia and united states. based on the report, arcandra got the citizenship status from united states since march 2012, arcandra was also reported to have used the united states passport 4 times to enter into indonesia. 50 as a response of the issue of dual citizenship hold by arcandra, joko widodo as the president of indonesia terminated him from the position as the minister on august 15, 2016.51 president has pointed out coordinating minister for maritime affairs luhut binsar pandjaitan as 49 energy world, ini sosok menteri esdm baru (2016). 50 bbc indonesia, soal kewargaan as, menteri archandra tahar: ’sudah dikembalikan (2016). 51 ihsanuddin, jokowi copot menteri esdm arcandra tahar, kompas.com (2016). http://journal.unnes.ac.id/sju/index.php/jils 134 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils the caretaker until the appointment of the definitive minister of esdm.52 when we analyze the case of arcandra tahar from the perspective of law no. 12 of 2006 about indonesian citizenship, arcandra was lost the status of indonesian citizens since he made an oath as the citizen of united states. the article 23 of law no. 12 year 2006 mentions that every citizen will lose their citizenship status when he or she make an oath to be the citizens of another country. the loss of the citizenship status ruled under the law no. 12 year 2006 stated that the citizenship status is lost, which means that the loss of the citizenship status does not need or require any procedure for the loss of the citizenship status, the citizenship status will directly lose when he or she makes an oath as the citizen in another country. the appointment of arcandra tahar as the minister in july 2016 was a big mistake for the country. the indonesian government had pointed out the foreigner as the minister in indonesia. arcandra could not be considered as the indonesian citizen since he hadmade an oath as the united states citizens, even he is one of the assets of the country and he is one of the indonesian origins. the appointment of arcandra as the minister has violated various laws like law no. 39 of 2008 about state ministry. the appointment of arcandra tahar as the minister has violated article 22 of law no. 39 of 2008 about state ministry which requires indonesian citizenship to be appointed as the minister in indonesia. based on article 23 of law no. 12 of 2006 about indonesian citizenship, and article 31 of government regulation no. 2 year 2007 arcandra is not an indonesian citizen anymore since he has made an oath as the citizen of united states. based on the regulation in the united states, even the united states recognize the dual citizenship system, but the citizens of united states will lose their citizenship 52 yuliana ratnasari, jokowi akhirnya copot arcandra, tirto.id (2016). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 135 available online at http://journal.unnes.ac.id/sju/index.php/jils status when he or she have a position in the government in another state. it indicates that arcandra has lost his citizenship status from united states since he is appointed as the minister in indonesian ministry of energy and mineral resource. the loss of united states citizenship status makes arcandra tahar being stateless since july 27th, 2016 and this condition violates the non-stateless principle. as mentioned in the 1954 convention relating to the status of stateless persons, the term stateless person means a person who is not considered as a national by any state under the operation of its law. 53 in the dilemma of the case of arcandra, the indonesia goverment may use article 20, 23 letter i and article 32 paragraph (1) of law no 12 year 2006 in order to protect arcandra from the stateless. based on article 20, arcandra may acquiring the status of indonesian citizen from the president since arcandra considered as the person deserving merit for services to the republic of indonesia or for the country’s best interests. indonesia also may use the article 23 letter i and 32 pharagraph (1), in article 23 the persons who live in another country for 5 years length and more, does not declare their intention of retaining their citizenship to the indonesian representative offices will lost their citizenship status as long as the incumbent does not become stateless because of such negligence. and based on article 32 paragraph (1), indonesian citizens who have lost their citizenship as mentioned in article 23 item i may regain their indonesian citizenship by forwarding a written application to the minister without going through the procedures as mentioned in article 9 to article 17 of law no. 12 of 2006. 53 article 1 paragraph (1) of status of stateless persons http://journal.unnes.ac.id/sju/index.php/jils 136 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils case of gloria natapradja hamel gloria natapradja hamel (gloria) was 16 years old and a student in islam dian didaktika senior high school in depok, west java. 54 she was appointed as the flag hoisting troop for august 17th, 2016. on august 15th, 2016, gloria was reported failed to perform as flag hoisting troop august 17th, 2016, due to the issue of dual citizenship owned by her.55 gloria gets her dual citizenship status from her parents, her mother indonesian and her father france. basically, the problem faced by gloria is not her mistake. based on law no. 12 year 2006, the child from intermarriage is ruled under the article 6 in this law. for those who are under the age of 18 (eighteen) and are unmarried, the children may choose their own citizenship status when they have reached the age of 18 years or marriage. but since gloria was born before the law no. 12 year 2006 promulgated, in article 41 was ruled that the children have to register within 4 years after the law is promulgated. the mistake is the gloria’s mother does not register gloria within 4 years after the law was promulgated. which means that, the case of gloria could be said as administrative mistakes, since gloria has not reached the age of 18 yet and unmarried. 54 fabian januarius kuwado, ini penjelasan ibunda gloria natapradja soal paspor perancis anaknya, kompas.com (2016). 55 robertus belarminus, sekolah masih berharap gloria jadi anggota paskibraka, kompas.com (2016). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 137 available online at http://journal.unnes.ac.id/sju/index.php/jils the concept of dual citizenship system in indonesia dual citizenships have been in much of the debate over the years. many developed countries such as us, uk, australia, and switzerland have no restrictions on holding dual nationality, whereas countries such as singapore, austria, india, and saudi arabia do not “recognize” or “restrict” dual citizenships, leading to automatic loss of citizenship upon acquiring other. some countries such as austria, spain may still grant dual citizenships upon certain special conditions under exceptional cases like celebrities. the following are list of countries which allow and do not allow dual citizenships. 56 table 1. list of countries which allow and do not allow dual citizenships no. dual citizenships non-dual citizenships dual citizenships with requirements 1 australia andorra south africa 2 barbados austria egypt 3 belgium azerbaijan germany 4 bangladesh burma spain 5 canada bahrain sri lanka 6 cyprus botswana pakistan 7 united states brunei turkey 8 united kingdom china 9 switzerland czech republic 10 south korea denmark 11 greece fiji 56 d’alessio law group, list of countries that allow or disallow dual citizenship. http://journal.unnes.ac.id/sju/index.php/jils 138 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils no. dual citizenships non-dual citizenships dual citizenships with requirements 12 france india 13 finland indonesia 14 iraq ecuador 15 italy estonia 16 israel iran 17 ireland poland 18 hungary papua new guinea 19 iceland japan 20 sweden peru 21 slovenia kuwait 22 syria kenya 23 serbia kazakhstan 24 armenia chile 25 lebanon kiribati 26 malta poland 27 tonga korea 28 philippines kuwait 29 sierra leone denmark 30 latvia 31 singapore 32 slovakia 33 ecuador 34 lithuania 35 solomon islands 36 fiji 37 malaysia 38 mauritius 39 netherlands 40 united arab emirates 41 romania http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 139 available online at http://journal.unnes.ac.id/sju/index.php/jils no. dual citizenships non-dual citizenships dual citizenships with requirements 42 thailand 43 mexico 44 nepal 45 venezuela 46 norway 47 zimbabwe 48 mauritius 49 myanmar 50 nepal source: d’alessio law group, list of countries that allow or disallow dual citizenship, available at http://dlgimmigration.com/united-states-citizenship/listof-countries-that-allow-or-disallow-dual-citizenship/, since the independence era, indonesia has used the single citizenship system. it is aimed to maintain the nationality of the indonesian citizens and to prevent negative impacts from foreigners. commonly the states which fight for their independence will tend to use the system of single citizenship. but in the process, the regulations on citizenship in indonesia has been changed many times, but in all of these changes, there is no citizenship law in indonesia which specifically states that indonesia absolutely implements the concept of dual citizenship system. the first law which is concerned with citizenship in indonesia is law no. 3 of 1946. in this law, indonesia applied the concept of single citizenship. when we refer to the law no. 3 of 1946, this law applied jus soli and jus sanguinis principle with the rights of repudiation. 57 the next law is law no. 62 of 1958. this law also does not recognize the concept of dual citizenship. law no. 62 of 1958 emphasized the 57 article 1 letter b of law no. 3 of 1946 http://journal.unnes.ac.id/sju/index.php/jils http://dlgimmigration.com/united-states-citizenship/list-of-countries-that-allow-or-disallow-dual-citizenship/ http://dlgimmigration.com/united-states-citizenship/list-of-countries-that-allow-or-disallow-dual-citizenship/ 140 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils use of jus sanguinis principle but beside the principle of jus sanguinis. law no. 62 of 1958 also applied the principle of jus soli. the implementation of the principle of jus soli can be seen in the article 1 letter f, g, h, i. the implementation of these two principles in law no. 62 year 1958 does not mean that this law recognizes the concept of dual citizenship. the issue of dual citizenship in indonesia was firstly famous in 1949. in the history, in 1949 the communist succeeded to seize the power from kuo min tang, and people's republic of china (prc) was borne at the time. this state used the law of citizenship with the jus sanguinis principle which means that all of the people who have the chinese’s descent, they are the citizen of prc including all the chinese people in indonesia and it is causing the dual citizenship in indonesia. 58 based on law in indonesia, dual citizenship is prohibited in indonesia, which means that it becomes a problem for indonesia and china in terms of the citizenship. in order to resolve the dual citizenship happened at the time, there was a discussion between indonesian minister of foreign affair, sunario and prc minister of foreign affair, chou en-lai on april 22, 1955. the result of the discussion was known as dual citizenship agreement of indonesia and china. the agreement was ratified in law no. 2 year 1958. the aim of this law to resolve the status of dual citizenship in indonesia and to prevent the dual citizenship happen in the future. in the law no. 2 year 1958, the way to solve the dual citizenship was by refusing one of the citizenship statuses owned by the people who hold the dual citizenship status from indonesia and china. 59 on april 10, 1969, law no. 2 year 1958 was amended by law no. 4 of 1969. the amendment was conducted because there was a 58 imam choirul muttaqin, kewarganegaraan ganda terbatas dalam perspektif hak asasi manusia, thesis (jakarta: universitas indonesia, 2011). 59 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 141 available online at http://journal.unnes.ac.id/sju/index.php/jils special treatment to the chinese people in a long period. based on the new decision, for those who have indonesia citizenship based on law no. 2 year 1958 they will still become an indonesian citizen and it is also valid for those who have the legal relationship with them. in the process, law no. 62 of 1958 amended by law no. 12 of 2006 by considering the philosophical, juridical and sociological aspects of law no. 62 of 1958 at the time was inappropriate with the condition of indonesia.60 the presence of law no. 12 year 2006 indirectly leads indonesia to apply the concept of dual citizenship, although nowadays the concept of dual citizenship in indonesia only applied in limited to the children as defined in the law.61 law no. 12 of 2006 applied jus soli and jus sanguinis principle in deciding the citizenship status as stated in article 4 in this law. in term of dual citizenship, it is stated in the article 6 in this law. for those who are under the age of 18 (eighteen) and are unmarried, the children may choose their own citizenship status. this article clearly shows the concept of dual citizenship but limited to the children from intermarriage until the child has reached the age of eighteen or until the child has married. when the child has reached the age of 18 and has marriage, they have to choose one of the citizenship statuses owned previously. the implementation of dual citizenship in indonesia is one of the solutions for the protection of the rights of the children from intermarriage. the same with japan, the concept of dual citizenship is not permitted in japan. if a person possesses dual citizenship, they have to choose either japanese nationality or foreign nationality for a certain period of time. according to the japanese law, a person who holds both japanese and foreign citizenship(s) must choose to renounce either the japanese or foreign citizenship(s) by his/her 22nd 60 id. 61 article 6 of law no. 12 of 2006 http://journal.unnes.ac.id/sju/index.php/jils 142 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils birthday, or within two years of acquiring the second nationality if acquired after the age of 20. 62 advantages & disadvantages of dual citizenship model the implementation of dual citizenship system certainly gives a new spirit for the indonesian diaspora in various countries. the implementation of dual citizenship system in indonesia is one of a big hope from the indonesian diaspora today. the issue of implementing dual citizenship in indonesia has been famous since august 2016, precisely after the existence of the case of arcandra tahar and gloria natapradja hamel. thus, both issues lead the indonesian to consider about implementing dual citizenship. however, the implementation of dual citizenship cannot be directly implemented in indonesia. there should be a deepest study on the effect of the dual citizenship in indonesia. indonesia needs to consider about the advantages and disadvantages of the implementation of dual citizenship in indonesia. there will be some advantages and disadvantages when indonesia applies dual citizenship system. the advantages of implementing dual citizenship in indonesia from the view of the advantages, the implementation of dual citizenship system in indonesia provides such benefits both for the citizens and also for the country itself. the advantages for the citizens 62 masachika sawano, dual citizenship japan, dual citizenship report. online at < https://www.dualcitizenshipreport.org/dual-citizenship/japan. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 143 available online at http://journal.unnes.ac.id/sju/index.php/jils when the indonesia apply dual citizenship are that it will be easier for the indonesians who live in the develop countries such as going to another state without visa and for the indonesian who hold us passport or other will be easily to have an intellectual property right and other facilities in their living country. 63 dual citizenship also provides a full capacity for diaspora to act transnationally, because they have full access to employment opportunities abroad and in their homeland. this status can also stimulate domestic investment related to economic capacity. in addition, it should be considered that the role of diaspora in developing the country will be very big if it can be maximized. as stated by wahid supriyadi 64 that dual citizenship plays an important role in optimizing the role of indonesian diaspora abroad to benefit indonesia. learning from china, how they can use the diaspora. when they began to open themselves in 1979, the first concern was the potential of the diaspora. during the first twenty years of china's development, there were usd307 billion of incoming investment, and 50 percent from the diaspora. the same thing also pointed out by amith singh, 65 that the diaspora has a very important power in building relationships between the countries, for the example, the indian diaspora. in simple, there are three reasons why the diaspora community is the most prominent base. firstly, in the side of economy, we can see how the diaspora may 63 ahmad jazuli, diaspora indonesia dan dwi kewarganegaraan dalam perspektif undang-undang kewarganegaraan republik indonesia, 11 jurnal ilmiah kebijakan hukum 97–108 (2017). 64 triono wahyu sudibyo, jalan panjang mengupayakan dwi kewarganegaraan indonesia, detik.com (2015). 65 ayushi agrawal, monika bisht & rakesh ranjan, grfdt seminar series indian diaspora: emerging issues and challenges, global research forum on diaspora and transnasionalism (2012). http://journal.unnes.ac.id/sju/index.php/jils 144 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils contribute through their highest income and increase every year. this income surely increases the amount of remittance received by indonesia when they send their money to their family in indonesia. the increasing of remittance also leads to the increasing of gnp (gross national product)66. based on the study conducted by task force immigration and citizenship (tfik), dual citizenship system which is applied in some countries leads to the increasing of gnp dramatically in that country such as pakistan, sri lanka, india and bangladesh.67 another benefit in the side of economy is ease of transactions, investment, business, and encourage construction and development. secondly, in the aspect of politic, diaspora can be ambassador in promoting indonesia where they live. diaspora plays an important role in strengthening the relationship between the countries of origin and receiving countries. thirdly, in the cultural aspect, diaspora may also contribute to introduce the indonesian culture in their living country. it is important in order to conserve our culture. more diasporas also can be an ambassador in promoting the tourism places in indonesia. jusuf kalla also explains the benefit when the citizenship law in indonesia allows the citizens for having dual citizenship status. if there are talented indonesians living abroad, they can be called back to the indonesia without worrying about losing their citizenship status. for example, there are many indian citizens live in the united states to work in the famous technology companies such as google and microsoft, anytime if the state needs them, they can come back at any time because the constitution of india allows their citizens to hold 66 gnp is a total income of the country in 1 year, include the value of production of the citizens of the country while inside or outside the country. (source: https://alpari-forex.org/id/beginner/glossary/gross-national-product/) 67 jazuli, supra note 63. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 145 available online at http://journal.unnes.ac.id/sju/index.php/jils dual citizenship. 68 other advantages in applying the concept of dual citizenship are:69 a. increasing the competitiveness and state revenue b. enhancing employment opportunities c. linking for investment, negotiation, technology transfer and infrastructure development d. encouraging the enhancement of cooperation’s among countries (economy, social & law) e. enabling family reunion, asset circulation and cultural exchange (language, cultural activity, idea) f. increasing the potential of human resources, transfer of competence and skills in order to reduce dependence on foreigners g. maintaining regional stability or international peace. h. enabling entitlement to social programs, such as education, health care, and pensions; i. enabling property ownership; j. possessing unrestricted residency; and k. having sense of belonging through personal ties to more than one country. disadvantages of implementing dual citizenship in indonesia besides a lot of advantages gained in the implementation of dual 68 dani prabowo, menurut jk, ini untung-rugi jika indonesia terapkan dwikewarganegaraan, kompas.com (2016). 69 eka martiana wulansari, konsep kewarganegaran ganda tidak terbatas (dual nationality) dalam sistem kewarganegaraan di indonesia. jurnal rechtvinding: media pembinaan hukum nasional l 1-6 (2015). http://journal.unnes.ac.id/sju/index.php/jils 146 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils citizenship system, there are also many disadvantages or obstacles in implementing dual citizenship system in indonesia. these disadvantages or obstacles do not only influence the state but also give an impact to the society itself. disadvantages which is impact to the society is that there will be double obligation for the person who hold dual citizenship status. these double obligations can be in the form of military services or taxation which is imposed to the persons who hold dual citizenship status. the persons who hold dual citizenship have to devoted to both countries and obey the regulation in both countries including in the taxation matter. beside double obligations, the persons who have dual citizenship also have a problem in performing the rights and obligation as the citizen. it happens because many factors, one of them is the differences of law or system applied in that country. the differences of law or system applied in one country to another country bring through the contradictory one another. related to the performing of rights and obligations as the citizen, the persons who hold dual citizenship status have a potential to get different treatment from the country or the society in their living country. this different treatment can happen in the social life or in the field of political rights in their living country because they are not an origin people of the country. other disadvantages in the implementation of the dual citizenship system which are effect to the country.: 70 there is a potential of decreasing the loyalty to the state. it happens because someone has felt comfortable in his second country or get better service in the country where they live. there is also a possibility that someone who has dual citizenship will be more inclined to his second country because what he or shegot in his second country is not 70 id. see also virdatul anif, arah politik hukum kebijakan perlindungan ham di indonesia, 1 lex scientia law review 5-18 (2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 147 available online at http://journal.unnes.ac.id/sju/index.php/jils available in his or her origin country. more, there is a possibility for them to bring his or her family move to their living country. when it happens, surely it will influence indonesia especially in term of economic and development of the country. another negative aspect that should be considered and should be settled by the state that is the possibility of illegal act or avoid of law. it has a big potential to happen in the country which is applied dual citizenship systems. for those who hold dual citizenship status, and they commit a crime, they can hide or get a protection in another country by using the status of dual citizenship, or by having dual citizenship status, they are trying to avoid the tax from the country. relating to the citizenship protection that hold dual citizenship, the country can be in dilemma to apply dual citizenship system. hikmahanto gives an example, when the foreigners who hold indonesian citizenship status become hostage in the abu sayyaf case, whether the foreigners who are not indonesian origin should also be assisted by the indonesian government?71 the implementation of dual citizenship system in the citizenship law in other countries and the benefits acquired by them inspire the idea for implementing dual citizenship system in indonesia being proper to be consider applying in indonesia in the future. but the idea of implementing dual citizenship in indonesia needs to have a deep research or discussion. this idea of implementing dual citizenship indonesia is a very compatible with the current condition all over the world. the needs of the people now days towards the mobility from one country to another country are being wider or even unlimited. the study conducted in this research shows a lot of fact regarding on the citizenship system in indonesia since the past where it also gives an answer on the implementation of the single citizenship 71 isyana artharini, problematika di balik kewarganegaraan ganda, bbc.com (2016). http://journal.unnes.ac.id/sju/index.php/jils 148 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils in indonesia until nowadays. then it leads to the new understanding on the citizenship in indonesia in the future. by considering the needs of the society in the past, nowadays and in the future surely it is different. the current global competition makes the state all over the world have to responsively fulfill the needs of their society in order to keep exist in the global competition. the implementation of dual citizenship in indonesia is a demand as well as a big dream of the indonesian diaspora over the past few years. but until nowadays the changes of the citizenship system in indonesia cannot be done, by considering that there should be a research and deep discussion in order to prevent the negative impacts from the implementation of dual citizenship in indonesia. besides the tantalizing benefits of implementing dual citizenship system in indonesia, the negative impacts of the changes of citizenship system in indonesia should be considered by the indonesian government. conclusion the implementation of single citizenship since the independence era has aimed to maintain the sense of nationality of the indonesian citizens. since fighting for the independence, the indonesian government tends to use the single citizenship system. however, following the current condition of the world, there must be a consideration in implementing dual citizenship system in indonesia, since there are some advantages of dual citizenship even thouth it is followed by some disadvantages. the advantages of dual citizenship among others: (a) increasing the competitiveness and state revenue, (b) employment opportunities, (c) linking for investment, negotiation, technology transfer and infrastructure development, (d) encouraging http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 149 available online at http://journal.unnes.ac.id/sju/index.php/jils the enhancement of cooperation’s among countries (economy, social & law), (e) enabling property ownership, and (f) possessing unrestricted residency. while the disadvantages of dual citizenship are: (a) having double obligations in the form of military services or taxation, (b) getting different treatment from the country or the society in their living country, (c) decreasing the loyalty to the state, (d) possibility of illegal act or avoid of law, (e) holding problem in performing the rights and obligation as the citizen, and (f) owning possibility for more inclined to his second country. considering the advantages and disadvantages above, in order to prevent the negative impacts from the implementation of pure dual citizenship, indonesia only needs to expand the scope of current dual citizenship system mentioned in law no. 12 of 2006. the concept of dual citizenship in indonesia needs to cover the whole indonesian origin and without limitation of age. in other words, indonesia allows her citizens to have another citizenship status from another country but prohibit the foreigner who does not have any relation with indonesia to have indonesian citizenship. there should also a specific regulation or policy regarding on the limitation and privileges for the indonesian diaspora in order to cover their aspiration and give a chance for them to contribute more for indonesia. as india did to their diaspora by applying the system of people of india origin (pio), by this system india no need to implement dual citizenship but they only need to give the privilege to their diaspora. references agrawal, ayushi, monika bisht, and rakesh ranjan. grfdt seminar series indian diaspora: emerging issues and challenges. 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"konsep kewarganegaran ganda tidak terbatas (dual nationality) dalam sistem kewarganegaraan di indonesia". jurnal rechtvinding: media pembinaan hukum nasional (2015): 1-6. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/lesrev.v2i2.27580 154 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils we are a nation of many nationalities, many races, many religions-bound together by a single unity, the unity of freedom and equality. whoever seeks to set one nationality against another, seeks to degrade all nationalities. franklin d. roosevelt about authors andi agus salim is an editorial assistant at jurnal media hukum (jmh) and indonesian comparative law review (iclr). he finished his bachelor of law from universitas muhammadiyah yogyakarta and his master of laws from the department of financial and economic law, asia university taiwan, republic of china. his fields are: law and artificial intelligence, criminal law, and public international law. andi agus can be reached at andi.agus@umy.ac.id; cc: agussalim.ndi@gmail.com. rizaldy anggriawan is an editorial assistant at jurnal media hukum (jmh) and indonesian comparative law review (iclr). he also served as an ad hoc reviewer at international journal of asian business and information management (q1 scopus indexed). he graduated from ll.m program at the department of financial and economic law, asia university, taiwan, republic of china. he also obtained a bachelor’s degree from the faculty of law, universitas muhammadiyah yogyakarta. his research interests include business law, competition law, labor law, and data protection law. rizaldy can be reached at rizaldy.ipols@umy.ac.id. mohammad hazyar arumbinang is a master student in the school of law at the university of melbourne, australia. he graduated from the international program for law and sharia, faculty of law, universitas muhammadiyah yogyakarta. his fields are: public international law, law of international organization, international environmental law and disaster law. arumbinang can be reached at marumbinang@student.unimelb.edu.ac.id. http://journal.unnes.ac.id/sju/index.php/jils https://www.azquotes.com/quote/593249?ref=nationality https://www.azquotes.com/quote/593249?ref=nationality https://www.azquotes.com/quote/593249?ref=nationality https://www.azquotes.com/quote/593249?ref=nationality https://www.azquotes.com/quote/593249?ref=nationality https://www.azquotes.com/quote/593249?ref=nationality https://www.azquotes.com/quote/593249?ref=nationality https://www.azquotes.com/author/12604-franklin_d_roosevelt mailto:rizaldy.ipols@umy.ac.id mailto:agussalim.ndi@gmail.com mailto:marumbinang@student.unimelb.edu.ac.id jils (journal of indonesian legal studies) volume 7(1) 2022 31 available online at http://journal.unnes.ac.id/sju/index.php/jils research article dimensions of water resources regulation in philosophy of justice and human rights perspective i wayan rideng1 , i ketut kasta arya wijaya2 hartini saripan3 1,2 faculty of law, university of warmadewa, denpasar, indonesia 3 university of technology mara, malaysia  wayanrideng1965@gmail.com submitted: january 15, 2022 revised: april 10, 2022 accepted: may 30, 2022 abstract management of water resources is closely related to the availability of access to clean water for the community and has direct implications for social justice and the fulfillment of basic human rights. however, various arrangements in the management of water resources in indonesia are considered not in favor of the concept of justice and are more directed towards commercialization and capitalization. this research is intended to examine, analyze, and criticize laws and regulations related to water resources. by consdiering several multidisciplinary aspects in the laws and regulations in the field of water resources, including aspects of justice and human rights, this a discourse of justice and legal protection in domestic and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 7 issue 1, june 2022 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0001-7780-2966 https://orcid.org/0000-0002-7193-7760 https://orcid.org/0000-0001-8760-7371 32 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils research also analyzes from the philosophical, legal, and sociological aspects. this research found and emphasize that the concept of pancasila can be a legal political basis for the state's right to control water resources to be directed so that the management of water resources does not oppress those who are socially and economically weak, or the poor. the availability of water is constant, while the demand for water is increasing in quantity and quality, then what will happen is scarcity. at this stage of water scarcity, the principle of justice becomes very important in water management. access to water justice is not individual or micro justice, but social or macro justice. justice to get water as a human right cannot be left to everyone based on a market mechanism, but government intervention to ensure the fulfillment of the right to water, at least is very much needed. keywords: water resources, justice, human rights; social justice http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 33 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 31 table of contents ……………………………..….………. 33 introduction ………………………………….……………. 34 philosophical dimensions for legislation in the field of water resources in justice & human rights perspective …………………………… 36 regulation of law in the field of water resources in realizing people's welfare in the future ………………………………………………………… 42 conclusion ………………………………………….…..…… 51 references ………………………………………………….… 21 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. how to cite: rideng, i wayan, i ketut kasta arya wijaya, and hartini saripan. “dimensions of water resources regulation in philosophy of justice and human rights perspective”. jils (journal of indonesian legal studies) 7, no. 1 (2022): 31-56. https://doi.org/10.15294/jils.v7i1.53820. http://journal.unnes.ac.id/sju/index.php/jils 34 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction water is a very important and vital need in human life and livelihood, for that, based on article 33 paragraph (3) of the 1945 constitution jo. article 2 paragraph (2) of law number 5 of 1960 concerning basic regulations on agrarian principles (undang-undang pokok agraria, hereinafter as uupa), states that the state has the authority to regulate and control it. the definition of controlled is used in the public aspect as formulated in article 2 of the uupa. article 2 of the uupa further gives the meaning of controlling as an act of regulating, planning, as well as managing and preserving it.1 the state's authority in regulating and making policies in relation to earth, water and natural resources still does not reflect the values of justice so that it is felt that taking sides with the community has not provided overall benefits. john rawls (1999) describes a state of justice as "a normal condition in which human cooperation is possible and necessary," otherwise known as circumstances of justice (coj), a formulation derived from david hume. hume himself calls coj to illustrate that new justice is a relevant virtue only when there are a scarcity and people are not spontaneously moved in emotional bonds to lend a helping hand.2 the principle of justice has not been seen in the water resources law number 7 of 2004, seen from its orientation that focuses more on the sector of economic value by providing a very large opportunity for the private sector to work on it, so that through the constitutional court decision number 85/puu-xi/2013 regarding the application for judicial review of law number 7 of 2004 1 boedi harsono, hukum agraria indonesia: sejarah pembentukan undang-undang pokok agraria, isi dan pelaksanaannya, jilid 1, jakarta: djambatan (2005). 2 eugene v rostow, the state and the rule of law in a mixed economy, 72 columbia law review 788-792 (1972). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 35 available online at http://journal.unnes.ac.id/sju/index.php/jils concerning water resources, the law on water resources was canceled.3 furthermore, the government issued law number 17 of 2019 as a replacement for law number 11 of 1974 concerning irrigation which was again enacted after the cancellation of law number 7 of 2004 concerning water resources. the state in carrying out its duties for the welfare of the people, forming various laws and regulations is very important, because the intervention of the state in managing the welfare of the people in the legal, social, political, economic, cultural, environmental, and defense and security fields is carried out by establishing legislation is unavoidable.4 therefore, in the formation of legislation, especially in the field of water resources, it is necessary to pay attention to the principles and norms in the formation of legislation.5 thus the formation of legislation must take into account the principles of the formation of good laws and regulations, among others: based on the values of pancasila, principles of the state based on law, principles based on the constitution, and principles based on legislation developed according to expert opinion.6 this research will be conducted using normative legal research, the use of normative legal research because it examines and analyzes laws and regulations related to water resources. when researchers review the laws and regulations that become studies, it will emphasize the philosophical foundations that exist in the legislation 3 i gusti ayu ketut giantari et al., development and revitalization strategies for traditional markets in bali, int. j. soc. econ. (2018). 4 hugo tremblay, clash of paradigms in the water sector-tensions and synergies between integrated water resources management and the human rights-based approach to development, 51 nat. resour. j. 307 (2011). 5 christopher schulz et al., the value base of water governance: a multi-disciplinary perspective, 131 ecol. econ. 241–249 (2017). 6 peter mollinga & daphne gondhalekar, finding structure in diversity: a stepwise smalln/medium-n qualitative comparative analysis approach for water resources management research, 7 water altern. 178–198 (2014). http://journal.unnes.ac.id/sju/index.php/jils 36 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils studied, namely regulations related to water resources. then the emphasis will also look at the aspect of justice and the perspective of human rights. this research will use a legislative approach and a philosophical approach, the reason used by the legal approach is used so that researchers can analyze and review the reason or ratio of the legis of the formation of legislation that becomes a study in this case is water resources. based on the description above, there are several things that can be studied as issues or problems in this research, as follows: how is the formulation and construction of the philosophical foundation for the formation of legislation in the field of water resources in the perspective of justice and human rights? philosophical dimensions for legislation in the field of water resources in justice & human rights perspective the history of water resources management arrangements still has a strong anthropocentric view, just as a resource that can be utilized as much as possible for human needs. this is certainly contrary to the eccentric environmental law.7 water functions are vital for all living things cause the air arrangement must be done carefully to be useful for life on earth itself. the law of water resources should be based on ecocentric thinking that places the interests of the environment equal to human interests. water characteristics that make it different from other natural resources, therefore the arrangement must be adjusted to the air characteristics. in the 7 muhammad nadzir, prinsip hukum dalam pengelolaan sumber daya air secara terpadu dan berkelanjutan (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 37 available online at http://journal.unnes.ac.id/sju/index.php/jils formation of the new law must be based on the principle of justice and sustainability to achieve the fulfillment of the right to air in a fair and equitable.8 hans kalsen stated that law is included in the system of norms that are dynamic (nomodynamics) this is because the law is always formed and removed by institutions or authorities that are authorized to form and remove it, so that in this case it is not seen in terms of its enactment or formation.9 therefore, the law is dynamic, the law will always develop and change as society develops, but still pay attention to the formal provisions that exist in forming or making laws. similarly, the law made may not accommodate all the interests of the community or unfair, but still called the law as long as it meets the provisions of fomalitas in the formation of the law.10 the regulation of water resources has not reflected the value of social justice as stipulated in article 33 of the 1945 indonesian constitution as a whole. the construction of policy direction in the regulation of water resources both law no. 7 of 2004 and law no. 11 of 1974 does not place paragraph (1) of the 1945 indonesian constitution on "the economy is structured as a joint effort based on the principle of family", paragraph (2) on "branches of production that distilling for the state and mastering the lives of many people controlled by the state" and paragraph (4) on the principles of maintaining the national economy.11 such construction will result in the construction 8 michael haas, international human rights: a comprehensive introduction (2013). 9 jimly asshiddiqie & muchamad ali safa’at, teori hans kelsen tentang hukum ((jakarta, sekretaris jenderal dan kepaniteraan mahkamah konstitusi republik indonesia, 2006). 10 michael j rouse, institutional governance and regulation of water services (2013). 11 s sarath mathilal de silva, "linking human rights and the environment.” daily news (june 2016), retrieved from < https://www.dailynews.lk/2016/06/20/features/85126 http://journal.unnes.ac.id/sju/index.php/jils 38 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils of legal politics on the concept of rights regarding the state (hak mengenai negara, hereinafter as hmn) over water resources based only on article 2 of the uupa which places the state only as a regulator. water resources is a social object that controls the lives of many people so that the branch of production is also important for the country. thus, controlling the lives of many people should be controlled by the state and not otherwise controlled by private, domestic or foreign individuals or legal entities.12 the philosophical basis is a consideration or reason that describes the regulation of the use of water resources which is formed by taking into account the views of life, awareness, and legal ideals which include the spiritual atmosphere and the philosophy of the indonesian nation which originates from pancasila and the preamble to the 1945 constitution.13 philosophically, water is actually a public good that is given by god to humans to be used and enjoyed in order to carry out their lives. thus, the concept of ownership of water resources is the common property of mankind (res communis) and therefore cannot be privately owned like a private good.14 the constitution of the state of indonesia has regulated matters relating to the control of natural resources, including water resources. state control (indonesia) over natural resources obtains legitimacy based on article 33 paragraph (3) of the 1945 constitution. the basis for obtaining this authority in state administrative law is called 12 paul jeffrey, distributive justice, stability, and sustainable water resources management (2018). 13 jati nugroho, legal pluralism as a conflict resolution alternative of law state and local wisdom in water resources management based on social justice (case study: in the community of water user farmers the regency of lumajang east java province), 40 j l pol’y glob. 86 (2015). 14 hamid chalid & arief ainul yaqin, studi tentang hukum air dan problematika pemenuhan hak asasi manusia atas air di indonesia, 48 j. huk. pembang. 411–435 (2018). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 39 available online at http://journal.unnes.ac.id/sju/index.php/jils 'attribution'.15 normatively, state control of natural resources can be seen in law no. 5 of 1960 concerning basic agrarian regulations, article 2 paragraph (2), which states: that the authority of hmn16 includes: a. regulate and administer the designation, use, supply and maintenance of the earth, water and space. b. determine and regulate legal relations between people and the earth, water and space.17 c. determine and regulate legal relations between people and legal actions concerning earth, water, and space. the state authority as referred to in letter (a) is further elaborated in several articles in chapter i of the uupa, particularly article 14. the elaboration of state authority in letter (b) is further regulated in articles 4, 6-11 and the provisions in chapter ii of the uupa. while the state authority in letter (c) refers to the provisions of articles 12, 13, 26 and 49 of the uupa.18 basically, the right to control the state is a reflection of the implementation of the values, norms and configuration of state law that regulates the control and utilization of the environment and water resources or is an expression of ideology that gives authority and legitimacy to the state to control and utilize the environment and natural resources (in this case: water) within its sovereign territory.19 however, for more than three decades, the last there has been 15 arnim wiek & kelli l larson, water, people, and sustainability—a systems framework for analyzing and assessing water governance regimes, 26 water resour. manag. 3153–3171 (2012). 16 yifan ding et al., human-water harmony index: a new approach to assess the human water relationship, 28 water resour. manag. 1061–1077 (2014). 17 lana d hartwig et al., water colonialism and indigenous water justice in south-eastern australia, 38 int. j. water resour. dev. 30–63 (2022). 18 julius sembiring, hak menguasai negara atas sumber daya agraria, 2 bhumi j. agrar. dan pertanah. 119–132 (2016). 19 ding et al., supra note. http://journal.unnes.ac.id/sju/index.php/jils 40 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils manipulation of interpretations by the government as the organizer of state power on the concept of "the right to control the state".20 because water is a very vital and important need, it should be given equal access to all citizens in its fulfillment. thus, the importance of water for human life, it is not surprising that the right to water today, both at the global level and at the national level, has been recognized as one of the human rights, namely the human right to water.21 the construction of policy directions in regulating water resources, both law number 7 of 2004 and law number 11 of 1974 does not place paragraph (1) of the 1945 constitution of the republic of indonesia concerning "the economy is structured as a joint effort based on the principle of kinship", paragraph (2) concerning "branches and the production branches which are important for the state and control the livelihood of the people are controlled by the state” and paragraph (4) concerning the principles of the implementation of the national economy.22 such construction will result in the construction of legal politics regarding hmn over natural resources (water) based only on article 2 of the uupa which places the state only as a regulator. in fact, it is common knowledge that water, or natural resources (water) is a social object that controls the livelihood of many people so that its production branch is also important for the state. thus, controlling the livelihood of many people should be controlled by the state and not otherwise controlled by private individuals or legal entities, domestic or foreign. 20 aisulu sabyr et al., the role of international conventions and covenants in achieving economic and environmental justice: a conceptual review, 22 j. leg. ethical regul. issues 1–8 (2019). 21 charles victor barber, the state, the environment, and development: the genesis and transformation of social forestry policy in new order indonesia (1989). 22 mollinga and gondhalekar, supra note. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 41 available online at http://journal.unnes.ac.id/sju/index.php/jils based on the existing provisions in the regulation of water resources that open the opportunity for privatization, so that it is not in accordance with the state's understanding of welfare. as a modern democracy, there are several economic functions that must be carried out in managing water resources, as stated by w. friedman (1971): among the economic functions now generally undertaken by thestate in modern democracies, he concentrates on four: those in which the stateis (1) provider of sosial services; (2) regulator of private economic activity,through the licensing of investment, the management of exchange controls,and the like; (3) entrepreneur of a nationalized public sector; and (4) lmpire, seeking to meet the community's standard of justice in resolvingconflicts and competing claims to economic resources, privileges and op-portunities.23 in the case of water concession, the constitutional court has already set six water limitation principles24, namely: (1) any exploitation of water shall not interfere with, override, let alone exclude the people’s right to water; (2) the state shall fulfill the people’s right to water. as considered above, access to water is one of its own rights, “protection, promotion, enforcement and fulfillment of human rights are the responsibility of the state, especially the government”; (3) must remember the preservation of the environment; (4) as an important production branch and which controls the livelihood of the people that must be controlled by the state, the supervision and control by the state on water is absolute; (5) as a continuation of the right to control by the state and because water is a matter of great control over the livelihood of the public, the main priority given by the exploitation of water is a state-owned enterprise or regional 23 nigel south, green criminology environmental crime prevention and the gaps between law, legitimacy and justice, 65 rev. za kriminalistiko kriminologijo 373–381 (2014). 24 salman m a salman, the human right to water—challenges of implementation, 106 in proceedings of the asil annual meeting 44–46 (2012). http://journal.unnes.ac.id/sju/index.php/jils 42 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils owned enterprise; (6) if after all the above restrictions have been fulfilled and there is still water availability the government is still allowed to grant permission to private business as long as the government is still conducting water exploitation under certain conditions and strict.25 thus, considering that water includes the livelihood of many people, the state is given the authority to manage water resources in making policies that should pay attention to various factors, especially on the fulfillment of rights for the community. guarantees for the fulfillment of these rights should be an important consideration in carrying out state and government functions.26 regulation of law in the field of water resources in realizing people's welfare in the future the formation of laws and policy formulations, between them, can completely fill and strengthen each other. because with good interaction between these two things, it will produce a substantially established product, and produce a public policy product that is ligitimated and obeyed massively by its stakeholders. in the process of legal formation can be seen how the flow and stages passed until the creation of a certain legal regulation, whether laws, government regulations and other laws and regulations.27 law no. 12 of 2011 which was later amended by law no. 15 of 2019 on the establishment 25 hubert h g savenije & pieter van der zaag, integrated water resources management: concepts and issues, 33phys. chem. earth, parts a/b/c 290–297 (2008). 26 roberto lenton & mike muller, integrated water resources management in practice: better water management for development (2012). 27 tremblay, supra note. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 43 available online at http://journal.unnes.ac.id/sju/index.php/jils of laws and regulations, in forming laws and regulations, must be based on the principles of good formation include: 1) the philosophical aspect is related to the ethical and moral values that apply in society. 2) juridical aspects are related to the legal basis on which the authority of legislation is made. 3) sociological aspects are related to how the laws and regulations that are prepared can be understood by the community, in accordance with the reality of the life of the community concerned.28 the legal principles of the legislation in accordance with law no. 12 of 2011 concerning the establishment of laws and regulations, can be grouped into 2 (two) namely first, the principle related to the establishment or process of the laws and regulations and; second, the principle related to the material content or substance of the laws and regulations.29 in the establishment of laws and regulations requires a principle or basis in forming a law of indonesia based on pancasila as its fundamental basis. the concept of pancasila law state is the concept of the original indonesian law state which became the main principle in the establishment of laws and regulations in indonesia.30 in a study of entitled subak in the perspective of law in indonesia, it was outlined that the laws and regulations related to irrigation where water management still does not provide guarantees of legal certainty and a sense of justice to the farming community, the 28 john rawls, a theory of justice (revised edition) massachusetts, the belknap press of harvard university press cambridge (1999). 29 patrick bond & jackie dugard, water, human rights and social conflict: south african experiences, 1 law, soc. justice glob. dev. 1–21 (2008). 30 muhammad azil maskur, kebijakan pengelolaan air pasca putusan mahkamah konstitusi tentang undang-undang sumber daya air, 16 j. konstitusi 510–531 (2019). http://journal.unnes.ac.id/sju/index.php/jils 44 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils water needed by the community for agricultural needs and daily needs is still not a priority.31 later in a comparative study related to water, the water regulation of some countries such as india in its constitution has regulated and provided protection and respect for indigenous peoples to water. protection and respect for human rights, one of which is the fulfillment of the right to water, especially clean water, has become a goal in development in the world, namely the mdgs and sdgs. similarly, the utilization of watersheds has begun to be done in cities in indonesia with the aim to create clean rivers and provide benefits to urban communities so as not to directly participate in realizing a clean and healthy environment is part of human rights.32 the constitutional court's decision no. 85/puu-xi/2013 opened up new hope in water resource management arrangements. some of the main thoughts used to remove the old wrong practice are the state's awareness of water management responsibilities. the law in the field of water resources in indonesia could not be separated from important issues including the right to water and water rights.33 in the establishment of legislation, the value of local wisdom also serves as a community order in maintaining harmonious relations with water resources and the surrounding environment. this harmonious relationship has an impact on the protection of water resource functions and environmental balance to achieve sustainable management.34 31 dani pinasang, falsafah pancasila sebagai norma dasar (grundnorm) dalam rangka pengembanan sistem hukum nasional, 20 j. huk. unsrat 1–10 (2012). 32 chalid and yaqin, supra note. 33 roro yunires saharena hutagaol, efektivitas pasal 23 huruf h undang-undang nomor 12 tahun 2006 tentang kewarganegaraan republik indonesia terhadap kepemilikan kewarganegaraan ganda masyarakat perbatasan kalimantan barat dengan sarawak (studi kecamatan jagoi babang kabupaten bengkayang), 3 j. fatwa huk (2020). 34 hidayat chusnul chotimah, tata kelola keamanan siber dan diplomasi siber indonesia di bawah kelembagaan badan siber dan sandi negara [cyber security governance and http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 45 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesia is a state based on law, meaning all laws and regulations must be sourced to the 1945 constitution as the highest basic law. all laws and regulations under the 1945 constitution are an explanation of the principles of ideology, politics, economics, social, culture, and law which is the 1945 constitution, therefore the laws and regulations have formil and material aspects.35 the concept of the formation of laws and regulations must be in accordance with the concept of pancasila law state. in addition, the concept of establishing good laws and regulations must prioritize the protection of human rights. the concept of establishing good laws and regulations must put forward the principle of equality before the law. the concept of the establishment of good laws and regulations must be in accordance with the principles of the formation of laws and regulations that have been previously established by law.36 in the indonesian state constitution, which is a guideline in the administration of the state, the provisions regarding the guarantee of the right to water for all indonesian people are affirmed in article 33 paragraph (3) of the 1945 constitution of the republic of indonesia. state control over water as a natural resource of a national nature is for the fulfillment of people's welfare. fulfillment of the welfare of all indonesian people as a manifestation of the struggle of the indonesian people to escape from colonialism which has created suffering ends and the obligation of the indonesian people to realize prosperity is a indonesian cyber diplomacy by national cyber and encryption agency], 10 j. polit. din. masal. polit. dalam negeri dan hub. int. 113–128 (2019). 35 ni putu rai yuliartini, gede dewa sudika mangku & putu pipit pricellia eka putri, upaya perlindungan hukum terhadap perempuan dan anak korban kekerasan seksual di provinsi bali, 7 in seminar nasional hukum universitas negeri semarang 367–380 (2021). 36 geoffrey j syme, blair e nancarrow & janet a mccreddin, defining the components of fairness in the allocation of water to environmental and human uses, 57 j. environ. manage. 51–70 (1999). http://journal.unnes.ac.id/sju/index.php/jils 46 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils consequence of the agreement of all indonesian people to establish a state called indonesia.37 in the context of the indonesian state, those relating to earth, water and natural resources have been regulated in the constitution, namely the 1945 constitution of the republic of indonesia article 33 paragraph 3 whose purpose is to realize the greatest prosperity and prosperity for the community, this means that the earth, water and wealth nature is functioned to realize social justice.38 indirectly that article 33 paragraph 3 contains the greatest benefit. when analyzed with the theory of jeremy bentham and john stuart mill, the flow of utilitarianism, which puts benefit as the main goal of law. benefit here is defined as happiness. for this reason, it is strived for that happiness to be enjoyed by as many individuals as possible in the society (the nation) (the greatest happiness for the greatest number of people). in line with the historical school of law, one of the schools of law that influenced the development of law, which was developed by frederich carl von savigny, it is further said that law is not made but grows and develops together with the community and grows by itself from public awareness.39 in the context of a legal state, pancasila has a position as a legal ideal (rechtsidee) which according to bernard arif shidarta is an idea, initiative, creativity and thought regarding the law or perception of the meaning of law which contains three basic foundations, namely justice, usability and legal certainty.40 bernard arif shidarta explained that the core of the legal ideals of pancasila as the legal ideals of the indonesian nation has core values, namely, divinity in one and only, respect for human dignity, national insight and insight into the 37 nugroho, supra note. 38 harsono, supra note. 39 syme, nancarrow, and mccreddin, supra note. 40 bernard arif shidarta, ilmu hukum indonesia: upaya pengembangan ilmu hukum sistemik yang responsive terhadap perubahan masyarakat, genta publisihing (2013). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 47 available online at http://journal.unnes.ac.id/sju/index.php/jils archipelago, equality and feasibility, social justice, moral character and noble character. and participation and transparency in public decision-making.41 jimly asshidiqie argued that the precepts in pancasila became the ideological philosophical basis for realizing the ideals of the state, namely: (a) protecting the entire indonesian nation and the entire homeland of indonesia; (b) improve general welfare; (c) the intellectual life of the nation; and (d) participate in carrying out world order based on freedom, eternal peace and social justice. furthermore, jimly asshidiqie positioned pancasila as the staatsfundamentalnorm which was first conveyed by notonagoro.42 pancasila as a view of life and the basis of the state is seen as a legal ideal (rechtsidee) as a guiding star for law formation and law enforcement. this position requires that the formation of positive law is to achieve the ideas in pancasila and can be used to test positive law.43 thus, in the formation of legislation or in the formation of laws in the field of water resources, pancasila is the staatsfundamentalnorm. for this reason, in the formation of law, its application and implementation cannot be separated from the values of pancasila.44 philosophically, the need to reposition the meaning of pancasila both conceptually and contextually as a philosophical ideological foundation becomes the mainstream in the management of water resources based on pancasila values. pancasila should be interpreted in its entirety and comprehensively. this means that pancasila is a 41 hartwig et al., supra note. 42 jimly asshiddiqie, pengantar ilmu hukum tata negara (jakarta, sekretaris jenderal dan kepaniteraan mahkamah konstitusi republik indonesia, 2006). 43 nugroho, supra note. 44 diane elson, gender justice, human rights, and neo-liberal economic policies, gend. justice, dev. rights 78–114 (2002). http://journal.unnes.ac.id/sju/index.php/jils 48 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils must in the formation of legislation as a principle or basis both conceptually and in its implementation.45 the existence of universal values in pancasila should be imprinted in every aspect of community life, nation and state. these values are the foundation for sustainable development. development must be based on the basic values of pancasila. within this framework, the values of pancasila are realized to bridge the reality of society, nation and state with ideals which are the hopes and aspirations of the indonesian nation. the existence of pancasila ethics is needed to condition the government and people to always be at the original goal of establishing the nation.46 the principles of justice and sustainability are two very important environmental law principles related to the utilization of natural resources. the principle of justice speaks of how humans should behave in each other in relation to the universe and how social systems must be organized to positively impact the environment.47 the principle of justice emphasizes equal access for all members of the community to utilize natural resources and to be involved in decision-making related to natural resource management. included in it is providing equal opportunities for future generations to utilize these natural resources, this is referred to as intergenerational justice.48 the principle of sustainability is a principle that supports intergenerational justice. this principle comes in line with the fact that 45 william nikolakis & r quentin grafton, law versus justice: the strategic aboriginal water reserve in the northern territory, australia, 38 int. j. water resour. dev. 11–29 (2022). 46 heliodoro ochoa-garcía & stephan rist, water justice and integrated water resources management: constitutionality processes favoring sustainable water governance in mexico, 46 hum. ecol. 51–64 (2018). 47 gérard francillon, bali tourism, culture, environment, (denpasar: university of udayana, 1979). 48 claudia pahl-wostl, joyeeta gupta & daniel petry, governance and the global water system: a theoretical exploration, 14 glob. gov. 419 (2008). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 49 available online at http://journal.unnes.ac.id/sju/index.php/jils limited economic resources, social, cultural, and environmental aspects are long-term dimensioned aspects, and that development takes place in an intricate ecosystem space.49 this principle emphasizes on the choice of alternative development of more resource-efficient and able to synchronize aspects of conservation with the wise use aspect. based on the above principles, in addition to the utilization of conservation becomes an important thing to be regulated in the management of water resources. because conservation will ensure the availability of water resources and ensure the utilization of water resources by future generations.50 this is in line with the results of research on the management of water resources which shows that the problem of water resources management in indonesia is related to three things namely availability, utilization and distribution.51 the policy of national water resources leads to three things, namely the conservation of water resources, the utilization of water resources and the control of water damages. this is reflected in the articles of law no. 7 of 2004, but in practice the conservation programs of water resources have not received full attention when compared to programs related to the utilization of water resources. re-enactment of law no. 11 of 1974, increasingly marginalize the water conservation programs because the focus of law no. 11 of 1974 is the utilization of water resources, especially for agriculture.52 therefore, new laws regarding water resources based on justice and sustainability principles should be immediately made. because 49 j a g cooper & john mckenna, social justice in coastal erosion management: the temporal and spatial dimensions, 39 geoforum 294–306 (2008). 50 dik roth, environmental sustainability and legal plurality in irrigation: the balinese subak, 11 curr. opin. environ. sustain. 1–9 (2014). 51 elson, supra note. 52 stephen tully, a human right to access water? a critique of general comment no. 15, in economic, social and cultural rights 345–373 (2017). http://journal.unnes.ac.id/sju/index.php/jils 50 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils through these two principles the community’s need for water resources can be met fairly and equitably. thus, based on the above description of water resource management based on the values of pancasila above, the model for regulating water resources in future legislation is related to the water resources law to better accommodate community participation, especially indigenous peoples who historically, philosophically, geographically and genealogically in their daily lives they still give respect, protection and fulfillment of the right to water for others, the environment and the creator in their daily lives.53 for the establishment of the law both from the legislature and the government in the formation of legislation in the field of water resources it is advisable to include a philosophical basis in the consideration of letter a, the formula of which is as follows: that water is a basic need of human life given by god almighty for it in its declaration must provide a sense of justice and respect for human rights in the fulfillment of the right to water for all nations. indonesia, which previously formulated that water is a basic need of human life given by god almighty for all indonesians.54 for the public it is fitting to know that the fulfillment of the right to water is part of human rights, when the state neglects the fulfillment of the right to daily needs of water, the community should be able to demand to be given the fulfillment of water.55 53 schulz et al., supra note. 54 sanjay sharma & audun ruud, on the path to sustainability: integrating social dimensions into the research and practice of environmental management, 12 business strategy and the environment 205–214 (2003). 55 sembiring, supra note. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 51 available online at http://journal.unnes.ac.id/sju/index.php/jils conclusion the existence of universal values in pancasila should be reflected in every aspect of community life, nation, and state. these values are the foundation for sustainable development. development must be based on the basic values of pancasila. the regulation of water resources based on pancasila values, then the model for regulating water resources in future legislation is related to the water resources law to better accommodate community participation, especially indigenous and tribal peoples who are historically, philosophically, geographically, and genetically every day they still give respect, protection and fulfillment of the right to water for others as a fundamental rights and social justice. this study concluded that article 2 of the water resources law emphasizes the principle of justice for every water user in our country, which stipulates that one of the principles of water resource management is the principle of justice. the justice referred to in the law means that the 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(environment-behaviour proceedings journal, 2021), and privacy in the era of big data: unlocking the blue oceans of data paradigm in malaysia (malaysian journal of social sciences and humanities, 2021). http://journal.unnes.ac.id/sju/index.php/jils https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=2tr7u9maaaaj&sortby=pubdate&citation_for_view=2tr7u9maaaaj:hc7cp41nsmkc https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=2tr7u9maaaaj&sortby=pubdate&citation_for_view=2tr7u9maaaaj:hc7cp41nsmkc https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=2tr7u9maaaaj&sortby=pubdate&citation_for_view=2tr7u9maaaaj:iwhjjkofinec https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=2tr7u9maaaaj&sortby=pubdate&citation_for_view=2tr7u9maaaaj:iwhjjkofinec https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=2tr7u9maaaaj&sortby=pubdate&citation_for_view=2tr7u9maaaaj:iwhjjkofinec https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=2tr7u9maaaaj&sortby=pubdate&citation_for_view=2tr7u9maaaaj:mvmsd5a6bfqc https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=2tr7u9maaaaj&sortby=pubdate&citation_for_view=2tr7u9maaaaj:mvmsd5a6bfqc https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=2tr7u9maaaaj&sortby=pubdate&citation_for_view=2tr7u9maaaaj:mvmsd5a6bfqc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=x8gi-nkaaaaj&sortby=pubdate&citation_for_view=x8gi-nkaaaaj:aqlvkmm33-oc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=x8gi-nkaaaaj&sortby=pubdate&citation_for_view=x8gi-nkaaaaj:aqlvkmm33-oc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=x8gi-nkaaaaj&sortby=pubdate&citation_for_view=x8gi-nkaaaaj:aqlvkmm33-oc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=x8gi-nkaaaaj&sortby=pubdate&citation_for_view=x8gi-nkaaaaj:qxl8fj1gzncc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=x8gi-nkaaaaj&sortby=pubdate&citation_for_view=x8gi-nkaaaaj:qxl8fj1gzncc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=x8gi-nkaaaaj&sortby=pubdate&citation_for_view=x8gi-nkaaaaj:kndyix-mwkoc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=x8gi-nkaaaaj&sortby=pubdate&citation_for_view=x8gi-nkaaaaj:kndyix-mwkoc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=x8gi-nkaaaaj&sortby=pubdate&citation_for_view=x8gi-nkaaaaj:kndyix-mwkoc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=66m9apwaaaaj&sortby=pubdate&citation_for_view=66m9apwaaaaj:ro6llkc54ncc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=66m9apwaaaaj&sortby=pubdate&citation_for_view=66m9apwaaaaj:ro6llkc54ncc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=66m9apwaaaaj&sortby=pubdate&citation_for_view=66m9apwaaaaj:ldfaerwxgeuc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=66m9apwaaaaj&sortby=pubdate&citation_for_view=66m9apwaaaaj:ldfaerwxgeuc https://scholar.google.com/citations?view_op=view_citation&hl=en&user=66m9apwaaaaj&sortby=pubdate&citation_for_view=66m9apwaaaaj:35n4qogy0k4c jils (journal of indonesian legal studies) volume 7(1) 2022 229 available online at http://journal.unnes.ac.id/sju/index.php/jils research article criminal liability of political parties from the perspective of anti-money laundering act maria silvya e. wangga1 , dian andriawan dg. tawang2, ahmad sabirin3, andrés herrera esquivel4 1,2,3 faculty of law, university of trisakti, jakarta, indonesia 4 university anáhuac mayab, mexico  maria.s@trisakti.ac.id submitted: feb 6, 2022 revised: march 21, 2022 accepted: may 30, 2022 abstract this research addresses the questions on, among other things, criminal liability of political parties from the perspective of the law on the prevention and eradication of criminal acts of money laundering and the models of criminal liability of political parties with respect to criminal acts of money laundering. the juridicalnormative research method used shows that political parties have met the criteria as corporations, being groups of people or assets to which the corporate criminal liability system applies. the fault of a political party in criminal acts of money laundering can be viewed through the a discourse of justice and legal protection in domestic and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 7 issue 1, june 2022 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0001-5655-8941 https://orcid.org/0000-0001-7065-6505 230 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils actions of its administrators being a systemically integral part of the party as they have been given the roles by the party for the benefit of the party. the first conclusion is that a political party can be held criminally liable for criminal acts of money laundering. secondly, the models of criminal liability of a political party in criminal acts of money laundering comprise (1) the model of criminal liability under law no. 8 of 2010 concerning the prevention and eradication of criminal acts of money laundering. (2) administrative model guided by the principle of systematiche specialiteit and the method of economic analysis of law approach through the political party law. (3) restorative justice model in the form of dual track system. this model is the alternative companion to the penal justice system, namely the criminal model and administrative model. keywords: criminal liability, money laundering, political parties, criminal act http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 231 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 229 table of contents ……………………………..….………. 231 introduction ………………………………….……………. 232 criminal liability of political parties: theories & practices ……………………………..………. 238 models of criminal liability of political parties in criminal acts of money laundering 244 i. formulation of criminal liability models in anti-money laundering act ….. 246 ii. some models for political party's criminal liability ………………………………….. 252 conclusion ………………………………………….…..…… 256 references ………………………………………………….… 257 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. how to cite: wangga, maria silvya e., dian adriawan dg. tawang, ahmad sabirin, and andrés herrera esquivel. “criminal liability of political parties from the perspective of anti-money laundering act”. jils (journal of indonesian legal studies) 7, no. 1 (2022): 229-264. https://doi.org/10.15294/jils.v7i1.54534. http://journal.unnes.ac.id/sju/index.php/jils 232 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction this study is intended for studying criminal liability of political parties from the perspective of the law on the prevention and eradication of criminal acts of money laundering. the indonesian financial transactions and analysis center (hereinafter as ppatk ri) has developed the politically exposed persons (pep) application. pep is defined as a person possessing or once possessing public authority, such as a state administrator. the persons included in pep are state administrators and/or persons recorded or once recorded as members of political parties having influence on the policies and operations of political parties, whether of indonesian or foreign nationality. the provisions on pep are regulated in the regulation of ppatk head number per-02/1.02/ppatk/02/15 concerning the categories of service users with the potential to commit criminal acts of money laundering. article 5 of this regulation of ppatk head states that the persons potentially exposed to the high risk of committing criminal acts of money laundering are, among others, administrators, or members of political parties. the great number of political party members holding positions in the government surely leads to the alertness regarding their behavior which may lead to criminal acts of money laundering as they are also included in the pep list.1 1 lolita fitriyana, pertanggungjawaban pidana partai politik dalam tindak pidana pencucian uang, 2 jurist diction 1319-1338 (2019). a politically exposed person is an individual with a high profile political role, or someone who has been entrusted with a prominent public function. these individuals present a higher risk of involvement in money laundering and/or terrorist financing because of the position they hold. for further comparison cases, please also see kim-kwang raymond choo, challenges in dealing with politically exposed persons, 386 trends and issues in crime and criminal justice 1-6 (2010); maulana bryantonio, 2 unnes law journal: jurnal hukum universitas negeri semarang 20-26 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 233 available online at http://journal.unnes.ac.id/sju/index.php/jils the politically exposed persons (pep) application launched by ppatk in 2015 has not reached political parties as corporations at all. this can be found in the 2020 annual report of ppatk reporting 523 analysis results, 457 information items and 25 results of examination of criminal acts of money laundering and other financial criminal acts, as presented in the following table2: table 1. money laundering and other financial crimes in indonesia no type of crimes amount 1 corruption 206 2 taxation 126 3 financing of terrorism 39 4 drugs 30 5 fraud 29 6 fraud and/or embezzlement 28 7 embezzlement 19 8 banking 8 9 excise 6 10 forgery 6 11 customs 3 12 fraud and/or forgery 3 13 criminal acts of money laundering (tppu) 3 14 customs and/or excise 2 15 theft 2 16 human trafficking and/or human trading 2 17 trading and/or fraud 2 18 gambling 2 (2013); idrus salam and satria unggul wicaksana prakasa, corporate legal liability for corruption in the private sector, 2 indonesian journal of law and society 235-258 (2021). 2 ppatk, "ppatk annual report year 2020, retrieved from <https://www.ppatk.go.id//backend/assets/images/publikasi/1621565512_.pdf> at. 8. http://journal.unnes.ac.id/sju/index.php/jils https://www.ppatk.go.id/backend/assets/images/publikasi/1621565512_.pdf 234 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils no type of crimes amount 19 fund transfer 1 20 ite 1 21 transfer of assets of foundations 1 22 smuggling of animals 1 23 trading and/or smuggling of animals 1 24 trading and/or banking 1 25 provocation and spreading of hoaxes 1 total cases 457 source: ppatk annual report year 2020 based on the table above, all the reports on analysis results or laporan hasil analisis (lha) and information have been submitted to the law enforcement agencies such as the police of the republic of indonesia (198 lhas and 56 information items), the directorate general of taxation (125 lhas and 64 information items), the corruption eradication commission (99 lhas and 34 information items), the state attorney (81 lhas & 9 information items), the directorate general of customs and excise (11 lhas), and the national narcotics board (9 lhas). furthermore, 25 reports on examination results or laporan hasil pemeriksaan (lhp) of ppatk have been submitted to the corruption eradication commission (8 lhps), the state attorney of the republic of indonesia (4), the police of the republic of indonesia (4), the national narcotics board (2), the directorate general of customs and excise (2), the directorate general of taxation (1), and ppatk data base (1). such lhps are related, among other things, to criminal acts of corruption, criminal acts of taxation, drugs-related criminal acts, customs-related criminal acts and criminal acts of fraud3. 3 id. in fact, in a further context, related to money laundering, it is also emphasized that the indonesian monetary system, which adheres to a free foreign exchange system, allows for free transactions in unlimited amounts, http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 235 available online at http://journal.unnes.ac.id/sju/index.php/jils scrutinizing the reports of ppatk ri above, the criminal liability for criminal acts of money laundering is still limited to the individuals of political party members and administrators, not yet reaching the political parties. in her study, nani mulyati (2018) states that political parties play important roles in the constitution, but they can still be imposed with criminal liability. if political parties are to be granted with immunity, they will only be subject to imposition of a sanction since they cannot be subject to forced dissolution. in their research, andreas nathaniel marbun and revi laracaka propose some considerations for political parties to be subject to criminal liability using the corporate liability theory, namely as follows4: a) many criminal acts committed by political party administrators for the interest of the political party in gaining extra money meet the criteria for vicarious liability; b) many criminal acts including through national banking and strict bank secrecy provisions are factors that give rise to opportunities for money laundering in indonesia. money laundering is closely related to criminal acts/crimes, therefore its eradication also means tackling the underlying crimes, especially against organized crimes, such as provisions for other criminal acts, such as: corruption, bribery, smuggling of goods, labor smuggling, smuggling. immigrants, banking, capital markets, insurance, narcotics, psychotropics, human trafficking, illicit arms trade, terrorism, kidnapping, theft, embezzlement, fraud, counterfeiting money, gambling, prostitution, taxation, forestry and the environment. see also muhammad ali zaidan, 1 the indonesian journal of international clinical legal education 3-18 (2019); maghfur ahmad, fiqih anti-korupsi mazhab negara: memadu hukum islam dan hukum nasional, 12 jurnal hukum islam (2014); suramin suramin, indonesian anti-corruption law enforcement: current problems and challenges, 2 journal of law and legal reform 225-242 (2021); ivan muhammad fakhrizy, combating corruption: problems and challenges in indonesia, 7 law research review quarterly 487504 (2021); indra yuliawan, law enforcement of political corruption as a form of abuse of political power, 4 law research review quarterly 879-898 (2018). 4 andreas nathaniel marbun and revi laracaka, analisa ekonomi terhadap hukum dalam pendanaan partai politik melalui pertanggungjawaban korporasi dalam tindak pidana korupsi, 5 integritas: jurnal anti korupsi 143-150 (2019). http://journal.unnes.ac.id/sju/index.php/jils 236 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils committed by political party core administrators meet the criteria of identification theory; c) many such criminal acts have been committed under a silent order from the political party system with no strict supervision of the sources of fund received from party administrators committing such criminal acts. political parties even give rewards to those giving quite a lot of contributions to the parties while knowing that such funds are proceeds of criminal acts of corruption by the administrators, thus fulfilling the theory of organizational liability. the norms for imposing criminal liability on a political party in criminal acts of money laundering are formulated in article 6 of law no. 8 of 2010 concerning the prevention and eradication of criminal acts of money laundering. the norm formulation states that corporations, including political parties, can be held liable for a criminal act of money laundering if: a). it has been committed or ordered by the corporation's controlling personnel; b). it has been committed to fulfill the purpose and objectives of the corporation; c). it has been committed in accordance with the duties and functions of the perpetrator or the one giving the order; and d). it has been committed to benefit the corporation. the authentic understanding of such norm formulation is that a political party which has met the criteria as a corporation can be held criminally liable for a criminal act of money laundering if it has been committed or ordered by the corporation's controlling personnel or if it has been committed in accordance with the duties and functions of the perpetrator or the ones giving the order. this refers to those having authority under the articles of association/by laws of the political party. a political party can also be held criminally liable if a criminal act of money laundering has been committed in the interest (purpose and objectives) of the political parties and the criminal act even provides some benefit or advantages to the political party. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 237 available online at http://journal.unnes.ac.id/sju/index.php/jils nyoman serikat putra jaya states that there are two requirements for imposing corporate liability, namely5 a) the unlawful act is committed by a person having work relationship or other relationship with the legal entity/corporation; b) the unlawful act is committed or intended for the benefit of corporate development. based on the two requirements proposed by nyoman serikat putra jaya, a political party may be held criminally liable for a criminal act of money laundering. this research employs the method of juricalnormative research or doctrinal research. according to soetandyo wignyosoebroto, doctrinal research conceptualizes law as a norm having the scope of ius constituendum, ius constitutum and law in concreto6. this research addresses the issue of criminal liability of 5 nyoman serikat putra jaya, hukum pidana khusus (semarang: badan penerbit universitas diponegoro, 2016) at. 10. please also compare with ikka puspitasari and erdiana devintawati, urgensi pengaturan kejahatan korporasi dalam pertanggungjawaban tindak pidana korporasi menurut kuhp, 20 kanun jurnal ilmu hukum 243-244 (2018). in fact, various problems in various cases of money theft have not yet found an effective solution, for example how to confiscate assets in cases of corruption committed by political parties, the form of accountability of political parties which is equated with corporations, to various cases of abuse of power in political parties. for further discussion, please see sugeng wahyudi, penal policy on assets recovery on corruption cases in indonesia, 4 jils (journal of indonesian legal studies 45-72 (2019); indra yuliawan, law enforcement of political corruption as a form of abuse of political power, 4 law research review quarterly 879-898 (2018); redentor g a obe and indah sri utari, criminal accountability for corruption actors in the form of concursus realist, 1 journal of law and legal reform 325-332 (2020); yeni lestari, political cartel and political corruption in indonesia, 2 law research review quarterly 407-420 (2016); muhtar hadi wibowo, corporate responsibility in money laundering crime (perspective criminal law policy in crime of corruption in indonesia), 3 jils (journal of indonesian legal studies) 213236 (2018); shubhan noor hidayat, lego karjoko, and sapto hermawan, discourse on legal expression in arrangements of corruption eradication in indonesia, 5 jils (journal of indonesian legal studies) 391-418 (2020). 6 soetandyo wignyosoebroto, hukum paradigma, metode dan dinamika masalahnya, (elsam & huma, jakarta, 2022) at. 147-162. http://journal.unnes.ac.id/sju/index.php/jils 238 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils political parties from the perspective of the law on the prevention and eradication of criminal acts of money laundering. the other question concerns the models of criminal liability of political parties in criminal acts of money laundering. criminal liability of political parties: theories & practices barda nawawi states that criminal liability contains a meaning of blameworthiness of the perpetrator (legal subject) for the criminal act he/she has committed.7 barda further confirms that criminal liability contains objective blameworthiness and subjective blameworthiness. objective blame worthiness means that the perpetrator has committed a criminal act (prohibited/unlawful act), while subjective blameworthiness means that the perpetrator should be blamed or held responsible for the criminal act, he has committed which should be subject to criminalization.8 the concept of liability of roscoe pound as quoted by romli atmasasmita is based on the mutually philosophical and legal perspectives9. for that purpose, pound expressly and systematically describes the concept of liability as shown on figure 110: 7 barda nawawi arief, tindak pidana mayantara perkembangan kajian cyber crime di indonesia, (rajagrafindo, jakarta, 2006) at. 73. 8 id. 9 roscoe pound, pengantar filsafat hukum, translated by mohamad radjab, (bhrataara, jakarta, 1996) at. 80-81. please also compare with romli atmasasmita, asas-asas perbandingan hukum pidana, (yayasan lembaga bantuan hukum indonesia, jakarta, 1989) at. 79. 10 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 239 available online at http://journal.unnes.ac.id/sju/index.php/jils figure 1. concept of liability examining the figure 1, the concept of liability is interpreted as the duty to bear the vengeance for the act committed by the perpetrator against a person who has been harmed. the increasingly effective protection by the law of the social interests for peace and order, and the belief that vengeance as the facility to tackle then the position of the payment of compensation has been shifted from initially being a “privilege” into a “duty”. the measure of such compensation is assessed not only based on vengeance which must be bought but from the viewpoint of harm or pain caused by the act of the perpetrator concerned. therefore, the concept of liability is interpreted as “reparation” so that the concept of liability has shifted from being the “composition for vengeance” to being “reparation for injury”. the change in the form of compensation in money into the imposition of punishment has been the origin of liability11. liability in criminal law is a central concept, as known by the doctrine of fault. according to sudarto, fault can, in the widest sense of the term, be equated to the definition of liability, which contains blameworthiness (verwitjtbaarheid) of the perpetrator because of his 11 id. concept of liability (philosophical point of view attact intentional action consent duty to repair injury duty to carry out formal undertaking http://journal.unnes.ac.id/sju/index.php/jils 240 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils act12. fault is known as mens rea, namely that a person's act unless he has an evil mind13. in english, we know the formulation that an act does not make a person guilty, unless the mind is legally blameworthy14. based on the principle, there two requirements which must be met to criminalize a person, namely the existence of a physical act which is prohibited/criminal act (actus reus) and an evil/blameworthy intent (mens rea). 15 chairul huda states that the basis for the existence of a criminal act is the principle of legality, while the basis for criminalizing the perpetrator is the principle of fault. this means that a criminal act can only be subject to criminalization if there is a fault in perpetrating such an act16. for that purpose, whether a person is said to have a fault concern with the issue of criminal liability. therefore, criminal liability refers to a person's liability for a criminal act he has perpetrated. chairul further states that the person's liability is for the criminal act he has perpetrated. criminal liability exists because there has been a criminal act perpetrated by a person17. in fact, criminal liability constitutes a mechanism developed by criminal law to respond to any violation on the basis of an agreement to reject a certain act. 12 sudarto sudarto, hukum pidana i (yayasan sudarto, semarang, 2018) at.115. 13 mahrus ali, asas-asas hukum pidana korporasi (rajagrafindo persada, jakarta, 2015), at. 93. 14 hanafi amrani and mahrus ali, sistem pertanggungjawaban pidana perkembangan dan penerapan (rajagrafindo persada, jakarta, 2015), at. 2122. 15 id. 16 chairul huda, dari tiada pidana tanpa kesalahan menuju kepada tiada pertanggungjawaban pidana tanpa kesalahan (kencana, jakarta, 2006) at. 68. 17 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 241 available online at http://journal.unnes.ac.id/sju/index.php/jils sudarto states that a person has an aspect of criminal liability in the sense that for the perpetrator to be criminalized, a number of criteria must be met, namely18: 1. existence of a criminal act committed by the perpetrator; 2. existence of the element of fault in the form of deliberate intent or omission; 3. existence of the perpetrator capable of taking the responsibility; 4. there is no excuse muladi and dwidja confirms that if a legal entity is charged of having committed a criminal act with deliberate intent or omission, there will be a question on how a legal entity having no human psyche (menselijke psyche) and psychological elements (de psychissche bestandellen) can meet the elements of deliberate intent or “opzet” (omission)19? d. schaffmeister, in muladi and dwidja, states that it is extremely hard to determine when a legal entity possesses the socalled intent20. intent is there with the legal entity if, first, it is actually there in the politics of the company or under an actual circumstance of a certain company. d. schaffmeister further adds the solution to the issue with the liability construction (toerekeningsconstructie),intent of natural persons (natuurlijk person) acting on behalf of an association/legal entity, which may give rise to intent of the legal entity21. according to remmelink, common knowledge of the majority of the directors can be considered as an intent of the legal entity, maybe a conditional intent and that minor fault of any person acting for the corporation which will, if accumulated, constitute a major fault 18 sudarto, supra note 12., at. 117. 19 muladi muladi and dwidja priyatno, pertanggungjawaban korporasi dalam hukum pidana (sekolah tinggi hukum bandung, bandung, 1991), at. 102. 20 id. 21 id. http://journal.unnes.ac.id/sju/index.php/jils 242 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils of the corporation itself.22. the makers of the 1881 criminal code law did not provide the definition of intent. the memorie van toelichting (memorandum of elucidation), however, presents the definition of delliberateas the will to do or not to do any act which is prohibited or ordered by the law23. the writers observe that the law on the prevention and eradication of criminal acts of money laundering has contained the formulation to impose criminal liability on political parties as corporations. this has been supported with the issuance of supreme court regulation no. 13 year 2016 concerning the procedures for handling criminal acts by corporations. in the context of rule-of-law state, the regulation serves as the law of procedures in order to impose criminal liability on political parties as corporations24. a political party meets the criteria as a corporation, being a group of people or assets. to both, the criminal liability system, namely corporate criminal liability, applies.25 therefore, the corporate criminal liability system which also applies to political parties can be applied in the hambalang case of criminal act of corruption. the member of the people's legislative assembly of the republic of indonesia, sitting as head of the democratic party faction, anas urbaningrum, was charged with committing a criminal act of 22 jan remmelink, hukum pidana komentar atas pasal-pasal terpenting dari kitab undang-undang hukum pidana belanda dan padanannya dalam kitab undang-undang hukum pidana indonesia (gramedia pustaka utama, jakarta, 2003). please also compare with j. m. van bemmelen, hukum pidana i hukum pidana materil bagian umum (binacipta, jakarta, 1984), at. 234. 23 id. 24 sabungan sibarani and faisal santiago, pertanggungjawaban terhadap korporasi berdasarkan uu no. 20 tahun 2001 tentang pemberantasan tindak pidana korupsi, 7 lex librum: jurnal ilmu hukum 129 (2021). 25 hasbullah f. sjawie, pertanggungjawaban pidana korporasi pada tindak pidana korupsi (kencana, jakarta, 2015), at. 178. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 243 available online at http://journal.unnes.ac.id/sju/index.php/jils corruption and a criminal act of money laundering in the hambalang project with verdict on case number 1261k/pid.sus/2015. the legal fact in this verdict explains that all the funds received from the projects financed by the state revenues and expenditures budget have been used not only for personal interests of anas urbaningrum but they also gave benefits before, during and after the congress of the democratic party in bandung in 2010.26 the juridical facts found in the indictment were the mention of the personal status of the accused anas urbaningrum as head of the democratic party faction and the mention of persons of the heads of branch executive council (dpc), regional executive council (dpd) of the democratic party throughout indonesia27. the criminal acts of corruption in the hambalang project indicate that the criminal conduct or act of corruption were not physically perpetrated by the political parties, but they were perpetrated by the party administrators or officials in performing the duties and authorities provided for in the articles of association and bylaws (ad/art) of the political party. the criminal law recognizes the so-called evil intent (mens rea) and evil deed (actus reus) on the part of the administrators of political parties listed in the structure in the articles of association and bylaws (ad/art) of the political party28. 26 maria silvya. e. wangga, barda nawawi arief, and pujiyono pujiyono, when criminal liability leads to political parties in criminal acts of corruption in indonesia, 14 international journal of innovation, creativity and change 474-476 (2020). 27 id. at. 479-480. also compare with maria silvya. e. wangga, 2021.pertanggungjawaban pidana partai politik dalam tindak pidana korupsi, dissertation (universitas diponegoro, semarang, 2021), at. 260. 28 chairul huda, pertanggungjawaban partai politik sebagai korporasi dalam sistem hukum pidana indonesia, stadium generale (universitas islam yogyakarta, yogjakarta, 2019). retrieved from <https://law.uii.ac.id/wpcontent/uploads/2019/07/2019-07-11-pertanggung-jawaban-pidana-partaipolitik-chairul-huda-fh-uii-jogja_compressed.pdf> http://journal.unnes.ac.id/sju/index.php/jils 244 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils the organic theory proposed by otto van gierke states that a legal entity is like a natural person, having the same personality as a natural person with the rights and obligations in legal association29. political parties serve as organs, being related to the parts such as dpp, dpc, faction heads and commission heads, etc30. any part of each function contributes to the ongoing operation in other organs. observing the organic theory to determine criminal liability (fault) of a political party in a criminal act of money laundering, it can be seen through the acts of the administrators because their actions reflect not only the actions for their individual benefits, but they need to be considered integral to the system of the party as they have obtained their roles from the party so as to benefit the party31. models of criminal liability of political parties in criminal acts of money laundering political parties can be categorized into corporation, being a group of people or assets. as a group of people and assets, the model offered by the authors for imposing criminal liability on political parties for criminal acts of money laundering has three (3) forms, namely criminal model, administrative model and restorative justice model. the authors offered three (3) models of criminal liability for 29 munir fuady, doktrin-doktrin modern dalam corporate law dan eksistensinya dalam hukum indonesia (citra aditya bakti, bandung, 2014), at. p.4. 30 maria silvya. e. wangga, supra note 26, at. 85. 31 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 245 available online at http://journal.unnes.ac.id/sju/index.php/jils viewing law as responsive law in the viewpoint of philip nonet & philippe selznick, who position law as public facility and aspiration.32 nonet-selznick confirm that the responsive law contrasts the other two models, namely repressive law and autonomous law. repressive law is the law serving as the instrument of repressive power. this law is aimed at maintaining the status quo of the ruler which is often applied with the excuse of guaranteeing order. in conclusion, this law has been formulated in detail to bind any person except for the ruler/law maker. meanwhile, autonomous law serves as a norm which keeps the autonomy of the law itself. therefore, due to its autonomous nature, the emphasis is the strict separation between power and law. legitimacy of law rests on the virtue of legal procedure which is free from political influence through the limitation of the already established procedures33. the efforts of developing and maintaining social order are collective duty of the community, political parties, including law-enforcement apparatuses as well institutions.34 criminal liability of political parties refers to the autonomous law placing law as public facility and aspiration. borowing the idea that if a corporation (political party) is sued as the perpetrator of a criminal act, the corporation (political party) will be imposed with liability under the following conditions35: 32 philip nonet and philippe selznick, hukum responsif, raisul muttaqien (transl) (nusa media, bandung, 1978), at. 52-89. please also compare with bernard l. tanya, yoan n. simanjuntak and markus y. hageteori hukum strategi tertib manusia lintas ruang dan generasi (cv. kita, surabaya, 2013), at. 169-172. 33 id. 34 maria silvya e. wangga, barda nawawi arief & pujiyono, revocation of political rights of the perpetrators of criminal acts of corruption, 4 jils (journal of indonesian legal studies) 282 (2019). 35 hasbullah f. syawie, supra note 25, at. 178. http://journal.unnes.ac.id/sju/index.php/jils 246 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils 1. the criminal acts of the administrators are committed not in the capacity as individual persons but in connection with the performance of their functions and authority (as regulated in the articles of association or by-laws of the corporation); 2. the acts of the administrators are not necessarily in the form of prohibited acts (offense of commission) but also in the form of acts in violation of legal obligations (offense of omission); 3. the criminal acts are committed for the purposes and goals of the corporation; 4. such criminal acts are committed for the benefit of the corporation; 5. the perpetrator or the person giving the order does not have any justification or excuse for being released from criminal liability. the authors describe the formulation of criminal liability model recognized in the law on the prevention and eradication of criminal acts of money laundering with various formulations, as follows: i. formulation of criminal liability models in anti-money laundering act 1. formulation of corporation as the subject of criminal act of money laundering the law on the prevention and eradication of criminal acts of money laundering has included corporations as legal entities which can be imposed with criminal liability. in article 1 sub-article (10), corporation is formulated as a well-organized group of people and/or assets, whether incorporated or unincorporated. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 247 available online at http://journal.unnes.ac.id/sju/index.php/jils with such formulation, corporation is viewed not only as a group of people but also as a group of assets, whether incorporated or unincorporated. political party is formulated as a corporation for being a group of people (citizens) as article 1 paragraph (1) of the political party law states that political party is an organization of national and local nature voluntarily formed by a group of indonesian citizens based on shared will and goals to struggle for and defend the political interests of the members, the community, the nation and the state as well as to maintain the integrity of the unitary state of the republic of indonesia based on pancasila and the 1945 constitution of the state of the republic of indonesia. the definition states that a political party is a corporation for being a group of people or citizens having certain goals (the direction to follow as set out in the party's deed of establishment) as well as assets and distinct rights and obligations. underlying such definition, the criteria for corporations with resemblance to political parties are, among other things: a) having an association in the form of domicile of the party from the central level to the regional level b) having the status of legal entity which can be equated with a human being c) having certain purposes as regulated in the political party's articles of association/bylaws d) possessing assets of the party from a number of sources, such as members' dues, third party contributions, aid funds and state budget/regional budget (apbn/apbd) e) having duration which cannot be limited f) having the rights and obligations regulated in the political party law and the political party's articles of association/bylaws g) having the legal basis as regulated in the political party law h) having the right to prosecute and to be prosecuted legally http://journal.unnes.ac.id/sju/index.php/jils 248 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. formulation regarding when a political party commits a criminal act of money laundering the norm formulation of article 6 of the law on the prevention and eradication of criminal acts of money laundering states that a criminal act of money laundering is committed by a corporation if a) it is committed or ordered by the corporation's controlling personnel. b) it is committed for the purpose of fulfilling the purposes and objectives of the corporation. c) it is committed in accordance with the duties and functions of the perpetrator or the one giving the order. d) it is committed for the purpose of benefiting the corporation. the law on the prevention and eradication of criminal acts of money laundering does not provide any elucidation concerning the act being committed or ordered by the corporation's controlling personnel, for the purpose of fulfilling the purposes and objectives of the corporation as well as its being committed in accordance with the duties and functions of the perpetrator or the one giving the order or being committed for the purpose of benefiting corporation. the concept under the 2019 criminal code (kuhp 2019) provides that for a corporation's criminal act liability can be imposed on the corporation if: a) it is included within the scope of business or activities as provided for in the articles of association or other provisions applicable to the corporation; b) it unlawfully benefits the corporation and; c) it is accepted as the corporation's policy http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 249 available online at http://journal.unnes.ac.id/sju/index.php/jils 3. formulation of criminal acts of money laundering committed by political parties a political party being a corporation subject of criminal law can be imposed with criminal liability based on the norm formulation of article 1 sub-articles (9) and (10) of law number 8 year 2010 concerning the prevention and eradication of criminal acts of money laundering. article 6 of the law on the prevention and eradication of criminal acts of money laundering confirms the forms of criminal acts of money laundering which may be committed by a political party, namely, as follows: a) any person, who places, transfers, assigns, spends, pays, grants, deposits, bring overseas, changes any form, exchanges with other currencies or other commercial papers or commits any other acts on the assets he knows or he should have known to be the proceeds of any criminal act as referred to in article 2 paragraph (1) for the purpose of concealing or disguising the origins of such assets, shall be charged for a criminal act of money laundering (article 3). b) any person, who conceals or disguises the origin, source, location, purpose, transfer of right or true ownership of the assets he knows, or he should have known as the proceeds of any criminal acts as referred to in article 2 paragraph (1), shall be charged for a criminal act of money laundering (article 4) c) any person, who receives or controls the placement, transfer, payment, grant, contribution, deposit, exchange or who uses the assets he knows, or he should have known to be the proceeds of any criminal acts as referred to in article 2 paragraph (1), shall be charged for a criminal act of money laundering as referred to in article 2 paragraph (1). http://journal.unnes.ac.id/sju/index.php/jils 250 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils 4. formulation of the parties imposed with criminal liability the policy in the formulation of article 6 paragraph (1) confirms that in the event of any criminal act of money laundering as referred to in articles 3, 4 and 5 is committed by a corporation, criminal sanction shall be imposed on the corporation, or it is controlling personnel. elucidation of article 6 paragraph (1) states that corporation also includes any organized group consisting of 3 (three) persons or more, existing for a definite time, and acting for the purpose of committing one or more criminal acts regulated in the law on the prevention and eradication of criminal acts of money laundering for the purpose of gaining financial benefits whether directly or indirectly. based on the norm formulations above, the parties that may be imposed with criminal liability for criminal acts of money laundering are as follows: a) with the political party administrators as the perpetrators, political party administrators shall be held criminally liable. b) with the political party as the perpetrator, political party administrators shall be held criminally liable. c) with the political party as the perpetrator, political party administrators shall be held criminally liable. 5. formulation of the types of criminal sanctions threatened against political parties the formulation regarding the types of criminal sanctions against corporations is further regulated in article 7 paragraphs (1) and (2) of law number 8 year 2010 concerning the prevention and eradication of criminal acts of money laundering. criminal sanctions against corporation consist of the type of main sanctions and the type of additional sanctions. the formulation of article 7 paragraph (1) reads: http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 251 available online at http://journal.unnes.ac.id/sju/index.php/jils the main criminal sanction imposed on a corporation shall only be a maximum fine of rp100,000,000,000. (one hundred billion rupiah) the formulation in law number 8 of 2010 concerning the prevention and eradication of criminal acts of money laundering asserts that in the event that the accused's payment of criminal sanction of fine as referred to in articles 3, 4 and 5 is insufficient, then the criminal sanction of fine shall be replaced with maximum imprisonment of 1 year and 4 (four) months. article 9 paragraph (1) provides that if a corporation is not able to to pay the criminal sanction of fine as referred to in article 7 paragraph (1), the criminal sanction of fine shall be replaced with confiscation of assets of the corporation or assets of its controlling personnel with the same value as the criminal sanction of fine imposed. furthermore, article 9 paragraph (2) states that in the event that the confiscated assets of the corporation as referred to in paragraph (1) are not sufficient, criminal sanction of confinement in substitution for fine shall be imposed on the corporation's controlling personnel by taking account of the fine which has been paid. the sanction with its limitation in the formulation cannot be served by political parties as corporations. the formulated sanction of confinement can only be served by humans as legal subjects. political parties can also be subject to additional sanctions under article 7 paragraph (2) which comprise a. announcement of the judge's decision b. suspension of any part or all business activities of the corporation c. revocation of business permit d. dissolution and/or ban on the corporation e. confiscation of corporate assets for the state; and/or f. acquisition of the corporation by the state. http://journal.unnes.ac.id/sju/index.php/jils 252 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils types of criminal sanctions of structural/institutional/ administrative nature are additional sanctions only. the formulation of these additional criminal sanctions has its limitations as it is highly dependent on the judge examining, hearing, and deciding upon the criminal case36. the forms of penal sanction to be imposed on political parties shall be adjusted to the characteristics of political parties. ii. some models for political party's criminal liability observing the description above, three theories on corporate liability can be applied to political parties in criminal acts of money laundering.37 first, vicarious liability namely that a criminal act is committed by political party administrators in the interest of the party wishing to gain extra money for the party. secondly, identification theory meets the criteria of liability with many criminal acts committed by the party's core personnel. thirdly, the theory of organizational model liability namely that may such criminal acts have been committed under silent order of the system of the political party having no strict supervision over the origins of the money received by party administrators from the criminal acts they have committed. political parties even give rewards to those giving quite a lot of contributions to the parties while knowing that such funds are proceeds of criminal acts of corruption by the administrators. 36 maria silvya e. wangga, pertanggungjawaban pidana partai politik sebagai badan hukum dalam tindak pidana korupsi, 4 integritas: jurnal anti korupsi 271 (2018). 37 andreas nathaniel marbun and revi laracaka, supra note 4, at. 143-150. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 253 available online at http://journal.unnes.ac.id/sju/index.php/jils the second model offered is administrative penal law with the sanction of political party dissolution.38 this model is based on the norm formulation of article 14 of law number 31 of 1999 in conjunction with law number 20 of 2001 concerning the eradication of criminal acts of corruption which provides that to any person violating the provisions of the law which expressly declare any violation of its provisions as a criminal act of corruption, the provisions in this law shall apply. this means that under the regulation a political party is a corporation but with respect to dogmatic partition of the systematiche specialiteit principle and the economic analysis of law method approach with benefit, value and efficiency characteristics, the criminal liability of political party shall refer to the administrative law, namely the political party law39. the third model is the restorative justice model as a form of political party's liability for criminal acts of money laundering throgh the concept of restorative justice. albert eglash was a psychologist who first proposed restorative justice in 197740. eglash proposed three (3) categories of restorative justice in a criminal justice system, the first is concerned with “retributive justice”, in which the primary emphasis is on punishing offender for what they have done. the second relates to what he called “distributive justice” in which the primary emphasis is on the rehabilitation of offender. the third is concerned with “restorative justice” which he broadly equated with the principle of restitution. howard zehr, known as the architect of the development of restorative justice suggests that restorative justice is a process to involve the extent possible, those who have a stake in a specific offence and to collectively identify and address 38 zainal arifin mochtar, pertanggungjawaban partai politik yang melakukan tindak pidana korupsi, 31 jurnal mimbar hukum 169 (2019). 39 maria silvya. e. wangga, supra note 36, at. 237-238. 40 james dignan, understanding victim and restorative justice (open university press, new york, 2005). http://journal.unnes.ac.id/sju/index.php/jils 254 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils harms, needs, and obligation, in order to heal and put things as right as possible41. van ness as quoted by pujiyono proposes 4 (four) models of restorative approach, namely42; 1). unified system, 2). dual track system, 3). safeguard system, and 4). hybrid system. 1. unified system this model is considered the radical one since it acquires authority for conflict resolution from the state. this model views that the state has stolen conflict from the parties and therefore, it returns the conflict to its "owners" by surrendering the efforts of justice processes to be conducted by the victim and the offender who will determine the conflict resolution results on their own. this model views that the state has no absolute right to conflict resolution so that the process of restorative approach is expected to be able to replace all this process in the criminal justice system. according to pujiyono, this model is too radical, and it sets aside the state's role as the representative of the people. 2. dual track system the restorative model as the alternative companion of the traditional process (criminal justice system). the parties to the conflict are given the opportunity to determine the method of criminal case solution; if they agree to resolve the conflict using the restorative model, then the criminal justice process will be eliminated. conversely, if the restorative model is unsuccessful 41 muladi muladi and diah sulistyani, catatan empat dekade perjuangan turut mengawal terwujudnya kuhp nasional (bagian i, 1980-2020) (universitas semarang press, semarang, 2020) at. 78. 42 van ness in pujiyono, pembaruan pertanggungjawaban pidana korporasi melalui pendekatan restoratif justice dalam model dual track system selective, inauguration speech, delivered during the ceremony of presentation of professorship in criminal law science at the law faculty of diponegoro university, semarang, december 17, 2019 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 255 available online at http://journal.unnes.ac.id/sju/index.php/jils then the resolution will be pursued by the criminal justice process. this model views that the restorative concept is primary or basic in nature. this model has been practiced well in japan and i has gained full support from the justice officials (the police, prosecutors, lawyers and judges). in relation to this model, pujiyono is of the opinion that this model is relatively ideal to apply because it does not prioritize repressive or retributive approach. however, this model has its limitation as there is no limitation or criteria regarding which cases can be settled by the restorative model. 3. safeguard system this model is made to handle criminal acts through the restorative concept, where restoration programs are used as the main facilities to handle criminal act issues leading to the shift from the criminal justice system to the restorative justice system. with this model, not all cases can be settled by a restorative approach since certain cases will still be settled by criminal justice. this model bears a resemblance to the unified system, but this model is more moderate, and it is not radical since it still recognizes the state's roles in settling certain cases in the criminal justice system. 4. hybrid system according to this model, the restorative approach and the criminal justice system are normative parts of the justice system. this model emphasizes the determination or stipulation of whether a person is guilty shall be conducted in the criminal justice system, while the sanction shall be based on the restorative concept. in connection with this model, martin wright sets a model framework of the authoritarian and democratic restorative justice system. this model views that in the authoritarian restorative justice system, decisions are made http://journal.unnes.ac.id/sju/index.php/jils 256 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils by two justice systems in respective courts with their own limits of authority. the democratic restorative justice system has its position outside the criminal justice system and the decision makers are the victim, the offender and community members. 5. selective dual track system model this model has its basis of considerations on the channel of settlement through a restorative approach side by side with the criminal justice system channel. the restorative approach concept is placed as the main (primary) means in a selective manner. this means that not all cases of criminal acts can follow the restorative channel, but rather, it can be conducted selectively based on clear parameters so that certain cases with special characteristics are not included in the restorative approach channel but in the criminal justice system. the authors highlighted that criminal liability of political parties in criminal acts of money laundering has a number of models such as the criminal model and administrative model. therefore, the restorative model which can be applied to criminal liability of political parties in criminal acts of money laundering is the dual track system model. this model is the alternative companion of the criminal justice system. the parties to a conflict will be given the freedom to choose the method for settling a criminal case. conclusion this study concluded that the law on the prevention and eradication of criminal acts of money laundering has recognized corporations, including political parties, as subjects of criminal acts. with the existence of the regulation, there will be no more debate on http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 257 available online at http://journal.unnes.ac.id/sju/index.php/jils whether political parties are corporations or not. the action (actus reus) and fault (mens rea) of the administrator listed in the structure of the articles of association and bylaws of of a political party are the action and fault of the party so that as a corporation, the political party can be subject to criminal liability in criminal acts of money laundering. the actions of the administrators listed in the structure of the political party constitute an integral part of the party as they have gained their roles and functions from the party. the mechanism for imposing criminal liability on political parties can be performed by using three models. the first is the model of application of principal criminal sanction, namely the criminal sanction of fine. the application of additional criminal sanctions is highly dependent on the judges examining, hearing, and deciding upon the case concerned. the second is the administrative model with the principal sanction of dissolution of a political parties based on the administrative law, namely the political party law. the third is the restorative justice model. this model requires the 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(semarang: universitad diponegoro, 2021). wangga, maria silvya e., barda nawawi arief, and pujiyono pujiyono. "revocation of poltical rights of the perpetrators of criminal acts of corruption". jils (journal of indonesian legal studies) 4, no. 2 (2019): 277-298. https://doi.org/10.15294/jils.v4i2.29689. wangga, maria silvya e., barda nawawi arief, and pujiyono pujiyono. "when criminal liability leads to political parties in criminal acts of corruption in indonesia". international journal of innovation, creativity and change 14, no. 1 (2020): 474-476. wibowo, muhtar hadi. “corporate responsibility in money laundering crime (perspective criminal law policy in crime of corruption in indonesia)”. jils (journal of indonesian legal studies) 3, no. 2 (2018): 213-236. https://doi.org/10.15294/jils.v3i02.22740. yuliawan, indra. “law enforcement of political corruption as a form of abuse of political power”. law research review quarterly 4, no. 3 (2018): 879-898. https://doi.org/10.15294/snh.v4i03.27102. zaidan, muhammad ali. “sociological approach to eradication corruption in indonesia (alternative to imprisonment)”. the indonesian journal of international clinical legal education 1, no. 1 (2019): 3-18. https://doi.org/10.15294/iccle.v1i01.20662. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/jils.v4i01.28224 https://doi.org/10.32697/integritas.v4i2.179 https://doi.org/10.15294/jils.v4i2.29689 https://doi.org/10.15294/jils.v3i02.22740 https://doi.org/10.15294/snh.v4i03.27102 https://doi.org/10.15294/iccle.v1i01.20662 jils (journal of indonesian legal studies) volume 7(1) 2022 263 available online at http://journal.unnes.ac.id/sju/index.php/jils if we elect the same corrupt politicians every time, that's an obvious message that we don't want a change. sukant ratnakar, quantraz http://journal.unnes.ac.id/sju/index.php/jils https://www.goodreads.com/work/quotes/89797907 264 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils about authors dr. maria silvya e wangga, s.h., m.h., is a lecturer at the faculty of law, trisakti university, jakarta, indonesia. she has written several articles that have been published including religious offenses in criminal law policies and their relationship to human rights (2011), waiver of the principle of equality before the law on permits for examination of state officials (2016), criminal liability of political parties as legal entities in criminal acts corruption crime (2018), political corruption enforcement (2019), revocation of political rights of the perpetrators of criminal acts of corruption (2019). as for the written works in the form of books, they are election criminal law (2011), juvenile court procedural law in theory and practice (2016) and the legal principles of child protection (2020). dr. dian adriawan dg tawang, s.h., m.h., is a lecturer at the faculty of law, trisakti university, jakarta, indonesia. he is a speaker in scientific forums as well as an expert in criminal cases in the police and courts. currently he serves as chairman of the center for criminal law studies, faculty of law, trisakti university. ahmad sabirin is a business law student from the faculty of law, trisakti university, focusing intellectual property, competition law, and oil gas and energy law. he has completed as legal intern at the ministry of law and human right of ri, legal intern at komisi pengawas persaingan usaha, legal intern at otoritas jasa keuangan, legal intern at constitutional court, legal tax reviewer at pt taxnesia utama, copywriter at torch group singapore, legal enumerator and surveyor at kode inisiatif. he is also written several journals and books about competition law, intellectual property, criminal law, constitutional law, internasional law. he selected as delegate of hpair asia conference 2021 by the harvard college project for asian and international relations, indonesia delegate for asean-china young leaders’ summit by asean foundation & peking university, selected official delegate for bali democracy student conference iv of the ministry of foreign affairs of the republic of indonesia, and semi-finalist in social project harvard national mun. he is mahasiswa berprestasi of law faculty & runner up of trisakti university in pemilihan mahasiswa berprestasi 2020 & 2021 years. he is awardee, full scholarship (kartu indonesia pintar) | this is a scholarship given by the ministry of education, cultures, and technology of the republic of indonesia. andrés herrera esquivel is a internasional relations student from the university anáhuac mayab, mexico. http://journal.unnes.ac.id/sju/index.php/jils attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23932f62a631 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare jils (journal of indonesian legal studies) volume 7(1) 2022 265 available online at http://journal.unnes.ac.id/sju/index.php/jils research article promoting the good governance by advancing the role of parliamentarians and the term offices limitation (comparing nigeria and indonesia) tonye clinton jaja1 , zaka firma aditya2 1 national institute for legislative and democratic studies (nilds), abuja, nigeria 2 constitutional court of the republic of indonesia  tonyeclintonjaja@yahoo.com submitted: feb 11, 2022 revised: march 22, 2022 accepted: may 30, 2022 abstract in the 21st century new world order, there is growing interest more than ever before in issues related to democracy and good governance around the world. this is a reflection of the increasing acceptance of the fact that democracy and good governance are not a luxury, but a fundamental requirement to achieve sustainable development. a discourse of justice and legal protection in domestic and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 7 issue 1, june 2022 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0003-1487-9821 https://orcid.org/0000-0002-2633-0927 266 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils parliament as of the key state institutions in a democratic system of governance have a critical role to play in promoting democracy and good governance. as the democratically elected representatives of the people, parliaments have the honourable task to ensure good government by the people and for the people. in the performance of their key functions of legislation, representation and oversight, parliaments encounter challenges that negatively affect their efforts in promoting democracy and good governance. the paper attempts to discuss the concept of parliamentary governance and the contribution of the parliament in consolidating democracy in indonesia and africa. this includes examining how parliaments respond to the growing public pressure for greater involvement, information, accountability and better service delivery to the citizens and the limitation of term offices ans one of the accountability processes. the paper argues that parliamentary governance is the basic parameter in assessing the progress of democracy in a country and concludes that lack of it is the source of poor governance with the attendant political, economic and social problems in a state. keywords: good governance, democracy, role of government, parliamentary control http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 267 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 265 table of contents ……………………………..….………. 267 introduction ………………………………….……………. 268 parliament & good governance: concepts & practices ……………………………………………….… 271 parliamentary governance & the role of parliament ……………………………………………… 275 the way forward & prospect of parliamentary governance ……………………. 282 limitation of the term of offices practices in indonesia in the context of good governance system ………………………………….. 285 some practices & discourses of term offices limitation in various countries: does this promote good governance? ……………..……… 288 conclusion ………………………………………….…..…… 291 references ………………………………………………….… 291 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. how to cite: jaja, tonye clinton, and zaka firma aditya. “promoting the good governance by advancing the role of parliamentarians and the term offices limitation (comparing nigeria and indonesia)”. jils (journal of indonesian legal studies) 7, no. 1 (2022): 265-298. https://doi.org/10.15294/jils.v7i1.54776. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/jils.v7i1.54776 268 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction in the new era of democratization, the common wisdom is that parliamentary governance is the main thrust of promoting democracy and good governance. the understanding is that in the absence of the parliament, democracy and good governance cannot thrive. this view was championed by lipset1 but was challenged by samuel huntington in the late 1960s. according to huntington, the promotion socioeconomic development through parliamentary governance required strong government, strong states, and strong political institution (what he called political development) rather than democracy.2 on the other hand, in many countries there are various practices of authoritarianism and absolute power, including how the power of parliament in government is. in addition, the debate between bicameral practice or not, irrelevant policies, and the crisis of parliamentary accountability in the modern era is now a problem and a challenge in almost all countries in the world.3 1 seymour martin lipset, democracy and working-class authoritarianism, 53 american sociological review 482-501 (1959). see also seymour martin lipset, some social requisites of democracy: economic development and political legitimacy, 53 american political science review 69-105 (1959). 2 samuel p. huntington, "the clash of civilizations?." in culture and politics. (new york: palgrave macmillan, 2000), at. 99-118. see also samuel p. huntington, will more countries become democratic? 99 political science quarterly 193-218 (1984). 3 giovanni sartori, "problems with parliamentary systems". in comparative constitutional engineering: international economic association series. (london: palgrave macmillan, 1994); kaare strøm, wolfgang c. müller, and torbjörn bergman, delegation and accountability in parliamentary democracies (oxford: oxfrord university press, 2015); karl dietrich bracher, problems of parliamentary democracy in europe, 93 daedalus 179–198 (1964). in a similar context, even http://journal.unnes.ac.id/sju/index.php/jils https://oxford.universitypressscholarship.com/view/10.1093/019829784x.001.0001/acprof-9780198297840 https://oxford.universitypressscholarship.com/view/10.1093/019829784x.001.0001/acprof-9780198297840 jils (journal of indonesian legal studies) volume 7(1) 2022 269 available online at http://journal.unnes.ac.id/sju/index.php/jils power tends to corrupt, absolute power corrupts absolutely, as emphasized by lord acton, where the practice of power absolutism encourages various corrupt practices in various parts of the world. various abuses of power and corruption have also developed into political and policy corruption. absolute power has a tendency to act dominantly, to influence, and at the same time to control so that power is solid. so, to ensure the implementation of policies in an accountable and transparent manner, the law is used as a tool to members of parliament are always linked between political recruitment patterns and voter attractiveness. for example, in the united states political tradition, the basis for determining members of parliament lies in attractiveness to voters and adherence to political party programs. this means that popularity with the work program of political parties is a consideration for the voting community. accordingly, the american political system distinguishes four types of members of parliament. first, agents of political parties, where members of parliament are elected for the purpose of influencing political policy making. second, candidates for parliamentarians are candidates from outside the party, namely very influential or popular figures who are expected to raise the party's prestige. third, members of parliament are people who have famous careers. fourth is entrepreneurship, where this member of parliament is more interested in the instrumental values of political activities. their main goal is to advance their personal career. this condition occurs in many countries, not only america, but also indonesia and various other countries. see also sebastian salang, parlemen: antara kepentingan politik vs aspirasi rakyat, 3 jurnal konstitusi 90-120 (2006); dahlan thaib, menuju parlemen bikameral (studi konstitusional perubahan ketiga uud 1945), 10 jurnal hukum ius quia iustum 85-97 (2003); muchammad ali safa'at, parlemen bikameral: studi perbandingan di amerika serikat, perancis, belanda, inggris, austria, dan indonesia. (malang: universitas brawijaya press, 2010); nathalie brack, and olivier costa, democracy in parliament vs. democracy through parliament? defining the rules of the game in the european parliament, 24 the journal of legislative studies 51-71 (2018); virdatul anif, arah politik hukum kebijakan perlindungan ham di indonesia, 1 lex scientia law review 5-18 (2017); hagi hutomo mukti, and rodiyah rodiyah, dynasty politics in indonesia: tradition or democracy?, 1 journal of law and legal reform 531-538 (2020). yunas luluardi, and ayon diniyanto, political dynasty in law and political perspective: to what extent has the election law been reformed?, 2 journal of law and legal reform 109-124 (2021). http://journal.unnes.ac.id/sju/index.php/jils 270 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils regulate so that the power held is not absolute. interestingly, the relationship between law and power creates interests. if the power is more absolute than the law, then in mahfud's view it will give birth to a political determinant of law where political power stands above the law.4 according to mahfud, this is because law is the result or crystallization of political wills that interact and (even) compete with each other. on the other hand, if law is stronger than power, then law is the determinant of politics in the sense that political activities are regulated by and must be subject to legal rules. power does have a tendency to act dominantly, dominate and influence so that power is solid. power tends to strengthen and maintain power. therefore, the law serves to limit the power that exists in the state.5 4 moh. mahfud md, politik hukum di indonesia (jakarta: lp3es, 2001), at. 8. 5 the issue of abuse of authority, whether corruption, trading influence or others, is often a problem. if examined more specifically the concept of abuse of authority must be seen from what was misused or misused when the person concerned was in office. in abusing authority, it must be used for the benefit of individuals, groups or to gain power for unilateral interests. in criminal law, the authority related to public officials, whether it is binding authority or free authority, is not the domain of criminal law. this is only included in the realm of criminal law, if the abuse of authority is not administrative in nature but causes harm to many people and the country. in this case, what often happens is collusion, corruption, nepotism, smuggling of goods or taxes and selling influence. for further discussion and comparison, please see kempe ronald hope, corruption and development in africa", in corruption and development in africa. (london: palgrave macmillan, 2000), at. 17-39; giorgio, j. paul dunne d'agostino, and luca pieroni, corruption and growth in africa, 43 european journal of political economy 71-88 (2016); gbenga lawal, corruption and development in africa: challenges for political and economic change, 2 humanity and social sciences journal 1-7 (2007); geetha a. rubasundram, and rajah, corruption and good governance, 36 journal of southeast asian economies 57-70 (2019); azhar kasim, bureaucratic reform and dynamic governance for combating corruption: the challenge for indonesia, 20 international journal of administrative science & organization 18-22 (2013); kelly bryan ovie ejumudo, and tobi becky ejumudo, corruption and development in nigeria: a study of ondo state, 7 law research review quarterly 153-166 (2021). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 271 available online at http://journal.unnes.ac.id/sju/index.php/jils in the light of this reasoning, the right question is: if democracy with good governance promotes socio-economic development, how do we promote democracy and good governance? what kind of institutions are beneficial in promoting good governance? and what is the role of the parliament in promoting good governance? the purpose of this paper is to answer this question. parliament & good governance: concepts & practices according to hanafi6, parliament is the organ of the government saddled with the responsibility of making laws for the peace and orderliness of a country. parliament in a presidential system of government is called the legislative assembly (the legislature). the structure and functions of the legislature varies from country to country. however, the principal function all over the world is to make law. for instance, in nigeria, section 4(1) of the 1999 constitution of the federal republic of nigeria provides that “the legislative power of the federal republic of nigeria shall be vested in the national assembly for the federal which shall consist of a senate and a house of representatives.” the above provision of the 1999 constitution of the federal republic of nigeria is similar to the provision of article 1 section 1 of the american constitution which states that: “the legislative power shall be vested in the congress consisting of the senate and house of representatives.” similarly, united kingdom operates a bicameral legislature which consists of house of commons, the lower house and house of lords, the upper 6 hanafi a. hammed and adio s. wahab, ensuring good governance through parliamentary control of administrative agencies: a critique, 3 nnamdi azikiwe university journal of international law and jurisprudence 69-82 (2012). http://journal.unnes.ac.id/sju/index.php/jils 272 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils house. though the two houses are responsible for law making for the country, yet also by design, the house of lords is equally the highest court in britain.7 however, the term parliament is generally identified with the british system of government and derived from the anglonorman concept. it is originated from the verb parler which means ‘talk’.8 from its origin, the meaning of parliament is a platform or house of talk or discussion for any issue related to the citizens to make decisions or policies based on consensus among citizens or their representatives. meanwhile, in indonesia practice and discourse, the 1945 constitution has been amended four times, including the establishment of a constitutional court with special authority to carry out checks and balances through what is called a judicial review of the law as a legal policy towards the constitution which is an orderly constitution. the constitution which is the highest legal norm which is full of the value system adopted. therefore, judicial review with the authority of the constitutional court to examine laws against the 1945 constitution, has therefore become the main element of the implementation of the constitution, constitutionalism and the rule of law. as the highest institutional statement in a constitutional state, the constitutional court has a special task that is formulated in the constitution, especially when a branch of state power is suspected of violating the constitution, must be heard before the constitutional court. this instrument makes the 1945 constitution enforceable, because conflicts that arise between the text of the constitution and 7 id. 8 navid safiullah, effectiveness of parliamentary standing committees in bangladesh, thesis, (dhaka: centre for governance studies, brac university, 2006). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 273 available online at http://journal.unnes.ac.id/sju/index.php/jils the policies outlined can be disputed and given unconstitutional sanctions by the constitutional court.9 having laid down the above background, the next important issue to examine is the concept of parliamentary governance. before proceeding to look at parliamentary governance, it is necessary to examine the concept of governance itself first before looking how the parliament is involved in promoting good governance. governance here is “good governance.” good governance some scholars argue is a system of government based on good leadership, respect for rule of law and due process, accountability of political leadership to the electorates as well as transparency in the operations of government.10 good governance is also generally understood as a set of eight major characteristics, and they are: participation, rule of law, transparency, responsiveness, consensus oriented, equity and inclusiveness; effectiveness, efficiency and accountability.11 in all ramifications, 9 please see also e. zaenal muttaqin, konsep pemisahan kekuasaan (separation of power) pasca amandemen uud 1945 antara lembaga eksekutif dan legislatif, 6 al qisthas: jurnal hukum dan politik ketatanegaraan 14-31 (2019); zulfan zulfan, analisis pengaturan dan praktik pemisahan kekuasaan sistem pemerintahan presidensial berdasarkan konstitusi, 25 jurnal media hukum 60-67 (2018); haposan siallagan, penerapan prinsip negara hukum di indonesia, 18 sosiohumaniora 122-128 (2016); suryajiyoso suryajiyoso, power and authority in the state administration system: comparing the netherlands and indonesia, 2 journal of law and legal reform 411-420 (2021); nurfaika ishak, rahmad ramadhan hasibuan, tri suhendra arbani, bureaucratic and political collaboration towards a good governance system, 8 bestuur 19-26 (2020); standy wico, michael michael, patricia louise sunarto, and anastasia anastasia, the future of constitutional complaint in indonesia: an examination of its legal certainty, 2 indonesian journal of law and society 59-78 (2021); iwan satriawan, and khairil azmin mokhtar, the role of indonesian constitutional court in resolving disputes among the state organs, 5 hasanuddin law review 159-179 (2019). 10 hammed and wahab, supra note 7. 11 nik ahmad kamal nik mahmod, "good governance and the rule of law", the first international conference on law, business and government 2013, universitas bandar lampung, indonesia, 45-55. see also michael johnston, http://journal.unnes.ac.id/sju/index.php/jils 274 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils good governance presupposes functioning state institutions, existence of decision-making process, policy formulation, information flows, effectiveness of leadership and transparent relationship between the rulers and the ruled, particularly on the allocation of scarce resources and power to allocate resources in the society. as billy dudley in his book “instability and political order: politics and good governance: rule of law, transparency, and accountability (new york: united nations public administration network, 2006) at. 1-32; yu keping, governance and good governance: a new framework for political analysis, 11 fudan journal of the humanities and social sciences 1-8 (2018); indah sri utari, and ridwan arifin, law enforcement and legal reform in indonesia and global context: how the law responds to community development?, 1 journal of law and legal reform 1-4 (2020); wahyu widodo, sapto budoyo, and toebagus galang windi pratama, the role of law politics on creating good governance and clean governance for a free-corruption indonesia in 2030, 13 the social sciences 13071311 (2018). in the further context, good governance is basically a concept that refers to the process of achieving decisions and their implementation that can be accounted for together. as a consensus reached by the government, citizens, and the private sector for the administration of government in a country. good governance in indonesia itself began to be really pioneered and implemented since the outbreak of the reformation era where in that era there was an overhaul of the government system that demanded a clean democratic process so that good governance is one of the reform tools that absolutely must be applied in the new government. however, when viewed from the development of the reformation that has been running so far, the implementation of good governance in indonesia cannot be said to be fully successful in accordance with the ideals of the previous reformation. there are still many frauds and leaks in budget management and accounting which are the two main products of good governance. see also eka pala suryana, and miftahul akla, regional financial transparency towards independence of development and good governance, 5 jils (journal of indonesian legal studies) 75-94 (2020); ellectrananda anugerah ash-shidiqqi, and hindrawan wibisono, corruption and village: accountability of village fund management on preventing corruption (problems and challenges), 3 jils (journal of indonesian legal studies) 195-212 (2018); nadir nadir, the paradigm of the general principles of good governance as examination method of indonesian presidential impeachment based on the perspective of ethical control, 7 padjajaran jurnal ilmu hukum 141-157 (2020). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 275 available online at http://journal.unnes.ac.id/sju/index.php/jils crisis in nigeria”, where there are failures in governance, violent conflicts are inevitable as peace and stability are absent.12 parliamentary governance & the role of parliament much as the types and nature of parliament vary in size and tenure, there are basic functions of parliament such as representation, lawmaking, and oversight. as representatives of the people, and as the supreme lawmaking institution in a nation, parliaments are designed to oversee executive spending and performance. though, as mollah argued, governance of a country depends on numerous factors, actors and institutions, but how, and how successfully, parliament carries out these functions is crucial.13 against these problems, the paper examines these three functions of parliament in ensuring good governance based on core elements of governance like participation, rule of law, accountability and transparency. 1. participation by representation all over the world, the parliament is responsible for representing the diversified will and demand of common people in the society. a democratically elected parliament is the only true voice of the people and accountable to the people by serving as the basic plank of a democratic system. besides, the quality of elections is crucial as 12 billy j. dudley, instability and political order: politics and crisis in nigeria. (ibadan: ibadan university press, 1973). 13 md mollah, and awal hossain, administrative reforms and governance in bangladesh: how far the dream of success? 2 global journal of arts humanities and social sciences 26-52 (2014). http://journal.unnes.ac.id/sju/index.php/jils 276 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils parliaments can hardly fulfil their roles, especially the role of representation, if elections are flawed.14 2. lawmaking & rule of law the second function of parliament in the search for good governance is making necessary laws and policies by reflecting people’s willingness, needs and expectations to govern the state’s affairs. effective parliament or legislature ensures representations of diversified societies to reach agreements on policy, taxing and budget spending based on consensus. however, the function of legislation of parliament requires both capacity and cooperation. in other words. effective legislation rests on two pillars: parliaments need to have the required expertise and support to make effective and fair laws; and there must be a sense of minimum cooperation within parliament and between the legislature and the executive, in particular as regards the sensitive issues of state.15 laws must be efficient and effective, and laws must be enforceable in conformity with the idea of democratic society. 3. accountability & transparency through oversight oversight is one of the legislature’s “check and balance” functions, through which it seeks to ensure that programmes are carried out legally, effectively, and for the purpose for which they were intended.16 14 uneca, striving for good governance in africa (addis ababa, ethiopia: uneca, 2004). 15 id. 16 id., see also ipu & undp, parliamentary oversight: parliament’s power to hold the government to account: global parliamentary report 2017 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 277 available online at http://journal.unnes.ac.id/sju/index.php/jils the parliament is the only state institution that can hold the government accountable by hearings, question period, and committee of inquiry.17 effective oversight makes parliament more functional to ensure the overall well-being of the common people. by strengthhening of the system of oversight, parliament becomes stronger as an institution and thus enjoys greater legitimacy.18 in the case of gross misconduct of the president or governor, parliament can impeach the president (uneca). problems & challenges of parliament several factors facilitate to confirm a parliament’s level of independence and power, and whether or not it is classified as rubber stamp or mere arena for talks. some of the major problems are: 1. political and electoral system the role of political parties and the election result greatly influence the effectiveness of parliament. therefore, the election should be free, fair, credible and participatory so that every voter can apply his/her voting right to elect their chosen candidate. in a parliamentary democracy, the majority party or coalition selects the chief executive from amongst its members and even cabinet members are also (inter-parliamentary union and united nations development programme, 2017). online available at: https://www.undp.org/content/dam/undp/library/democratic%20governance /parliamentary%20devdelopment/global%20parliamentary%20report_en.pdf. 17 rounaq jahan, the parliament of bangladesh: representation and accountability, 21 the journal of legislative studies 250-269 (2015). 18 ipu & undp, supra note 16. http://journal.unnes.ac.id/sju/index.php/jils https://www.undp.org/content/dam/undp/library/democratic%20governance/parliamentary%20devdelopment/global%20parliamentary%20report_en.pdf https://www.undp.org/content/dam/undp/library/democratic%20governance/parliamentary%20devdelopment/global%20parliamentary%20report_en.pdf 278 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils selected from the majority party.19 a loss of support or vote of no confidence in the government results in both the government and parliament leaving office.20 besides, the high command of the party determines who will a nomination for election by the exchange of money.21 so, most of the candidates nominated as business group, not from a politician. therefore, the parliamentarians are not expert enough in politics, policy and governance issues. 2. lack of political will and institutional consciousness in many legislatures, member loyalties to political parties or leaders far outweigh concerns for the legislature as can institution. an institutional consciousness may be weak or non-existent and members lack a vision or concern for the power and development of their legislature. unless at least some key members are concerned about legislative power and good governance and the legislature as an institution, it is unlikely to improve. 3. poor perceptions by and relations with civil society individual and groups in civil society may not understand the workings of the legislature and are often unskilled in articulating their needs to the legislature. in many systems, legislators and constituents rarely interact, and institutional weaknesses make it difficult for 19 john k. johnson, the role of parliament in government. (washington, d.c. usa: the international bank for reconstruction and development/ the world bank, 2005). 20 rounaq jahan, supra note 17. 21 harold d. lasswell, and abraham kaplan, power and society: a framework for politicai inquiry (london: routledge, 2017); david easton, harold lasswell: policy scientist for a democratic society, 12 the journal of politics 450-477 (1950). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 279 available online at http://journal.unnes.ac.id/sju/index.php/jils legislators to respond to citizen needs even when they understand them. a legislature unresponsive to the needs of the electorate will tend to lack public support. finally, legislators often poorly represent women and other marginalized groups in the society. 4. constitutional barrier the last military administration in nigeria produced the 1999 constitution of the federal republic of nigeria which is inherently ambiguous in most of its provisions. this has engendered increasing rate of political party defection thereby endangering parliamentary governance and democratic consolidation in the country.22 thus, the 1999 constitution in sections 68 and 109 provide against party switching with a condition. for instance, section 68 (1) (g) states thus: a member of the senate or the house of representatives shall vacate his seat in the house of which he is a member if being a person whose election to the house was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that house was elected. provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored. section 109 of the constitution is also couched in the way as section 68. the implication of these provisions is that they grant open licence to parliamentarians to join another political party once there is conflict 22 okey ikechukwu, party politics and carpet crossing, arise news, november 21, 2018. http://journal.unnes.ac.id/sju/index.php/jils 280 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils or division in their own party.23 therefore, the deficiencies in this provision proved a leeway and an escape root for legislators to indulge in party switching, an action which endangers parliamentary governance. however, freedom of assembly and association granted by the constitution is another issue of concern in discussing parliamentary governance. these rights are fundamental that it is not easy to take it away from the people by any design. in this respect. the views expressed by late williams decades ago, remain valid: the problem of carpet-crossing is not easy to deal with…in dealing with this problem, one comes up against the fundamental rights of freedom of assembly and freedom of association and it would surely not be right to curtail the rights of members of 24parliament in this respect. part of the reason for the supreme court decision in the case of fedeco v alhaji mohammed goni (1983) ncsc 481, and attorneygeneral of the federation v atiku abubakar (2007)25 is the constitutional provision of the right to peacefully assembly and association. the 1999 constitution in section 40 provides for the right of persons to form a political party or association. that is, every person shall be entitled freely to associate with other persons, and in particular he may form or belong to any political part. this provision is an escape route for parliamentarians who join another party from their original party with the negative impact on parliamentary governance and democracy. 23 lawrence i. edet, politics of defection and its implications on nigeria’s democracy, 17 global journal of human-social science 1-6 (2017). 24 f. r. a. williams, fundamental rights and the prospect for democracy in nigeria, 115 university of pennsylvania law review 1073-1090 (1967). 25 the cases are available online at < https://africanlii.org/content/attorney-generalfederation-2-ors-v-alhaji-atiku-abubakar-3-ors-sc-31/2007-2007-ngsc-118-20> http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 281 available online at http://journal.unnes.ac.id/sju/index.php/jils 5. inadequate access to information in every democratic political system, legislatures have some responsibility for government oversight, and for analyzing and amending, or at least commenting on legislation and budgets they pass. much of the information required for this comes from the executive, and some come from sources outside the government or even outside the country. many legislators lack access to the information required for them to adequately analyze government proposals. 6. inadequately prepared legislators one goes to law school to become a lawyer, and to medical school to become a doctor, but how does one learn to be an effective legislator? the job of a legislator is complex, yet few legislatures provide adequate training opportunities for either new or returning members. legislators, therefore, are often unaware of their authority, how to best organize their time and conduct their business, or how to deal effectively with citizens and the press. 7. high rate of turnover of legislators in the parliament in most cases some legislators will serve only one term of four years and may not return for second time by losing nomination or election. unless a legislator serves for at least two or more terms in the parliament, the required experience may not be there for delivery of good governance through legislation. 8. poor legislativeexecutive relations good relations between the legislature and the executive demand instead humility and restraint, which african presidents do not have. http://journal.unnes.ac.id/sju/index.php/jils 282 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils as oko posits differences and disagreements that easily yield to resolution in mature democracies prove intractable because of the undemocratic mindset so prevalent among africa’s political elites. no amount of loyalty is ever enough for leaders who generally view surrender as cooperation.26 according to the scholar, they expect, indeed demand, cooperation without any reciprocal commitment to treat the legislature as a coequal branch of government. most of them frankly require what legislators cannot and should not give them: abdication or total capitulation. for instance, a situation where the executive refuses to take and implement legislative resolutions directed at it does not help to promote parliamentary governance. treating parliamentary resolution as a mere advisory opinion which the executive is not bound or obligated to obey is a development which impedes parliamentary governance. the way forward & prospect of parliamentary governance 1. institutionalizing credible parliamentary elections holding regular, free, fair participatory and credible elections is a first and foremost step for institutionalizing democracy. unfortunately, this has been a challenge for some countries in africa where interference with democratic system affects the quality of legislators that deliver democratic dividend to the people. 26 okechukwu chinwuba oko, legislators in changing and challenging times: an analysis of the nigerian national assembly. (new jersey: goldline and jacobs publishing, 2014). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 283 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. effective use of committee power in a democratic assembly, parliamentary governance is assured through the power of a committee system. public accounts pressure the government to cut back corruption upon their findings through investigations. parliaments worldwide use public hearings by parliamentarians to address problems of corruption, maladministration, abuse of office, and crime. parliamentary committees might have the authority to conduct investigations and fix the law and ensure due process and good governance. 3. equipping members and employees new parliamentarians come into the parliament with little or no knowledge of parliamentary work for good governance. at the same time, old timers or returnees need refresher course to cope with new developments. orientation programmes introduce new members to legislative facilities, procedures, and processes as well as their responsibilities. it also facilitates returning members to study changes to parliament.27 members of parliament in several nations build the foremost of portable computer work programmes to change them to use email, surf web and write correspondence. similarly, orientation and technical work programmes facilitate new skilled employees to understand the workings of parliament, and once needed, their area of responsibility. 4. reforming legislative and budgetary processes changes in legislative and budgetary processes can enhance the parliament’s performance. several changes in the legislative and budgetary can be considered for promoting good governance by the parliamentarians. transparency and public participation, as well as 27 john k. johnson, supra note 19. http://journal.unnes.ac.id/sju/index.php/jils 284 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils debate on policymaking, should be enhanced by commissioning ‘white papers or background reports on critical policy issues as a prelude to the introduction of legislation.28 proposed legislation and budgets should be automatically referred to committees for scrutiny before being placed in the parliament. 5. engagement of the opposition the practice of boycott or workout of the parliament by the opposition, which is unique to african parliaments, has been a major cause for the weak performance of its accountability and good governance. in a westminster style parliamentary system, it is the opposition’s special responsibility to scrutinize the work of the government as the ruling party members are expected to extend support to the executive. but according to jahan, the opposition has boycotted more than half of the parliamentary sittings since 1995, complaining lack of opportunities to voice their concerns inside the parliament.29 bringing the opposition back into the parliament as well as keeping them engaged in parliamentary work remains the principal and most challenging task. one of the most important measures to engage the opposition is to grant it a constitutionally recognized role and status backed by earmarked resources. 28 jahan rounaq, the parliament of bangladesh: challenges and way forward, the daily star, june 03, 2012. online at <https://www. thedailystar.net/newsdetail-236719> 29 rounaq jahan, supra note 17. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 285 available online at http://journal.unnes.ac.id/sju/index.php/jils limitation of the term of offices practices in indonesia in the context of good governance system the efforts to limit power have been practiced since the constitutional amendments after the new order. the limitation of the term of office is one form of effort to prevent the occurrence of persistent power positions which are believed to be the main source of deviations in power. prior to the amendment, the president and vice president could be re-elected without any limitation on term of office. meanwhile, after the amendment, the term of office of the president and vice president is constitutionally limited by article 7 of the 1945 constitution, namely for five years and after that they can be re-elected in the same office for one term only. this spirit was then imitated to limit the term of office of other branches of power, which are generally regulated not in the 1945 constitution but in various laws. for example, constitutional judges can only serve for 5 years and can be re-elected for one term as stipulated in article 22 of the constitutional court law. likewise, the chairman/member of the judicial commission and the supreme audit agency, whose data only serves for 5 years and can be reelected for one term. along the way, this limitation of term of office is not only intended for state officials in the core branch of power, but also for other state officials such as leaders of the corruption eradication commission, governors, regents and mayors. but unfortunately, the limitation of term of office does not apply to members of the legislature, both central and regional. according to article 74 paragraph (4) of law number 4 of 2014, it is not clear http://journal.unnes.ac.id/sju/index.php/jils 286 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils whether members of the legislature can run for re-election in the next election if they have been elected previously. this means that as long as the member of the house of representatives fulfills the requirements, he or she can still run for re-election in the following elections.30 in addition, there is no regulation that states in the requirements that candidates for members of the legislature who have served as members of the legislature for 2 (two) terms cannot run for re-election like the president and other state officials. in fact, when considering the provisions of article 15 paragraph (1) of law number 30 of 2014 concerning government administration, it has been emphasized that the authority of government agencies and/or officials is limited by the period or grace period, the area or area of application and the scope of the field or material. as a member of the people's representative institution, the region or region, the enactment of authority and the scope of the field or material of authority have been clearly described in the law no. 17 of 2014 concerning mpr, dpr, dpd, and dprd (hereianfter as md3 law)31. however, regarding the period or grace period of authority, 30 article 76 paragraph (4) of the law of the republic of indonesia number 17 of 2014 concerning the people's consultative assembly, the people's representative council, the regional representatives council and the regional people's representative council, reads: "the term of office of members of the dpr is 5 (five) years and ends on when a new member of the dpr takes the oath/promise.” 31 the md3 law is the law concerning the mpr, dpr, dprd and dpd. this law contains rules regarding the authority, duties, and membership of the mpr, dpr, dprd and dpd. rights, obligations, code of ethics and details of the implementation of duties are also regulated. for further and comprehensive explanation, please also see meidi kosandi, kontestasi politik dan perimbangan kekuasaan dalam perumusan dan implementasi uu md3 2014, 1 jurnal politik 125-154 (2015); riris katharina, polemik perubahan atas uu md3 dalam perspektif kebijakan publik, 10 jurnal pusat penelitian 25-30 (2018); budi suparman, and efriza efriza, proses politik pemilihan pimpinan dpr ri dalam dinamika politik revisi uu md3 di dpr ri tahun 2014-2018, 5 jurnal renaissance 624-636 (2020); indah fajar rosalina, and emilia , media relations http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 287 available online at http://journal.unnes.ac.id/sju/index.php/jils the md3 law only states that the term of office for members of the people's representative institutions (dpr, dpd and dprd) is 5 (five) years. there is no clause that states "and after that member of the people’s representative institutions can be re-elected in the same office, for one term." this means that there is no limitation on the periodization of members of the people's representative institutions. in addition, the existence of a term of office must also include a periodization limit as with other positions. the period of work of the house of representatives which is not limited can result in the absence of regeneration of legislative members so that the political climate cannot develop. the limitation of the term of office of the house of representatives can also prevent the dysfunction of members of the house of representatives because they have served for 2 (two) terms. if there is a limitation on the term of office of the house of representatives, the constitutional rights of every citizen can be granted, especially citizens who want to nominate themselves as members of the legislature. the regeneration cycle will run faster, party cadres will always be filled with new, innovative and productive generations who are ready to replace their senior positions. ideally, in the concept of limiting power, the law is made to limit power in the state. power is very synonymous with politics, or at least because politics or every political activity always aims to achieve power, so that power is not abused, the law must control that power. moreover, power itself can be misused, so if left unchecked, it will have an impact on the emergence of arbitrary actions by those acting in implementing law no. 2 of 2018 on md3, 13 jurnal bina praja: journal of home affairs governance 171-182 (2021); jonathan chen, and keoni indrabayu marzuki, md3 laws in indonesia: sword of damocles over the jokowi presidency?, 208 rsis commentaries 1-3 (2014). http://journal.unnes.ac.id/sju/index.php/jils 288 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils on behalf of the state.32 to prevent this possibility, the essence of the constitution was to limit power. such restrictions should not only be directed at the executive branch of power, namely the president and vice president, but also other branches of power). some practices & discourses of term offices limitation in various countries: does this promote good governance? although almost all countries in the world adhere to the principle of separation of powers, there are still very few countries that impose restrictions on the term of office of members of parliament. in fact, in the united states as the axis of democracy, there is no limit to the periodization of its members of parliament. thus, the term of office of lawmakers in the united states can be up to life. the debate whether parliamentarians should be limited or not limited has been a debate in european union countries. the european commission for democracy through law or better known as the venice commission has mentioned the importance or not of these restrictions. according to the venice commission, there is a positive impact from the limitation on the term of office of parliament, namely the cessation of the view that being a member of parliament is a career 32 wa ode fatihatul khaerunnailla, tunggul ansari s. n., and abdul madjid, urgensi pembatasan masa periode anggota dewan perwakilan rakyat dalam upaya pencegahan penyalahgunaan kekuasaan, 4 jurnal ilmiah pendidikan pancasila dan kewarganegaraan 182 (2019); irma khairunnisa mansyur, pembatasan masa jabatan anggota dewan perwakilan rakyat republik indonesia ditinjau dari aspek demokrasi. dissertation. (malang: universitas muhammadiyah malang, 2021). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 289 available online at http://journal.unnes.ac.id/sju/index.php/jils and the growing thought that being a member of parliament becomes a temporary job to serve the community. limitation of parliamentary positions is also the antithesis of parliamentary power which is difficult to replace. parliamentary restrictions can also affect variations within parliament itself such as minorities, women, and millennials. the venice commission also emphasizes that if there is a limitation on the term of office of the parliament, rationally no more than 2 (two) terms. this can be seen in article 71, namely: if term limits are introduced, at least two consecutive terms should be allowed. this appears to be reasonable mitigations of the adverse effects of term limits indicated above and would preserve in particular the need for accountability towards the electorate. it woulad also be more respectful of the principle of proportionality in the interference with the rights to vote and be elected. the introduction of term limits should be applied so as to allow for a gradual renewal of the 33mps, thus quaranteeing continuity. although the venice commission has signaled those parliamentary terms may be limited, none of the european union countries have adopted this restriction. switzerland and france are countries that have submitted proposals regarding the limitation of parliamentary term of office to 3 (three) terms, but so far this has not been realized. 33 european commission for democracy through law (venice commission), “report on term-limits” (strasbourg, venice commission, 2019). retrieved online from <https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=cdlad(2019)007-e> http://journal.unnes.ac.id/sju/index.php/jils 290 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils in southeast asia, the limitation of parliamentary positions can be found in the philippines, namely 2 (two) terms. this provision can be found in article vi section 3 of the philippine constitution as follows: the term of office of the senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirteenth day of june next following their election. no senator shall serve for more than two consecutive terms. voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.34 countries on the south american continent pretty much adhere to parliamentary term limits such as costa rica, bolivia and venezuela. in costa rica, members of parliament are limited to only serving one term, namely 4 years as stipulated in article 107 of the costa rican constitution (amendment 2015): “the deputies will remain in their offices for four years and may not be reelected in [a] successive form”.35 in venezuela, members of parliament are limited to 2 terms of 5 years each as stipulated in article 192 of the venezuelan constitution (amendment 2009) “the deputies [masculine] and deputies [feminine] of 34 republic of the philippines, the 1987 constitution of the republic of the philippines – article vi, online, retrieved from <https://www.officialgazette.gov.ph/constitutions/the-1987-constitution-of-therepublic-of-the-philippines/the-1987-constitution-of-the-republic-of-thephilippines-article-vi/> 35 constitute project, “costa rica's constitution of 1949 with amendments through 2015”, (william s. hein & co., inc, 2016). retrieved from < http://journal.unnes.ac.id/sju/index.php/jils https://www.officialgazette.gov.ph/constitutions/the-1987-constitution-of-the-republic-of-the-philippines/the-1987-constitution-of-the-republic-of-the-philippines-article-vi/ https://www.officialgazette.gov.ph/constitutions/the-1987-constitution-of-the-republic-of-the-philippines/the-1987-constitution-of-the-republic-of-the-philippines-article-vi/ https://www.officialgazette.gov.ph/constitutions/the-1987-constitution-of-the-republic-of-the-philippines/the-1987-constitution-of-the-republic-of-the-philippines-article-vi/ jils (journal of indonesian legal studies) volume 7(1) 2022 291 available online at http://journal.unnes.ac.id/sju/index.php/jils the national assembly remain for five years in the exercise of their functions and may be reelected.”36 in bolivia, members of parliament are limited to 2 terms of 5 years each as stipulated in article 156 of the bolivian constitution, “the term of the mandate of the members of the assembly is five years, and they may be reelected for a single additional continuous term”. conclusion the crucial finding of this paper is that a democratically elected parliament is the true voice of the people and responsible to the people which serves as the main platform of democratic and parliamentary governance. besides, the quality of elections is crucial for a truly democratic parliament because parliaments can hardly fulfill their roles, especially the role of representation, if elections are defective and controversial. therefore, to ensure efficient and effective parliamentary governance, there is need to strengthen the functions of the parliament which include representation, lawmaking, and oversight, are carried out in a unique way with the engagement of all concerned in decision making process. references anif, virdatul. “arah politik hukum kebijakan perlindungan ham di indonesia”. lex scientia law review 1, no. 1 (2017): -18. https://doi.org/10.15294/lesrev.v1i01.19453. 36 constitute project, “venezuela (bolivarian republic of)'s constitution of 1999 with amendments through 2009”, (william s. hein & co., inc, 2012). retrieved from < https://wipolex-res.wipo.int/edocs/lexdocs/laws/en/cr/cr110en.pdf> 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"analisis pengaturan dan praktik pemisahan kekuasaan sistem pemerintahan presidensial berdasarkan konstitusi." jurnal media hukum 25, no. 1 (2018): 60-67. about authors dr. tonye clinton jaja obtained llb, llm, phd degree from university of london. he working as senior research fellow/acting head of division of bills and legislative drafting, national institute for legislative and democratic studies, nigeria. he also serving as an advocate, lawyer, and attorney-at-law. his area of practice and expertise concerning commercial law, corporate law, employment law, contract law, international law, arbitration, litigation, and immigration. zaka firma aditya is a constitutional researcher at the indonesian constitutional court. he received a bachelor's degree (sh/ll.b) from the faculty of law, semarang state university and completed a master's degree (mh/ll.m) from the faculty of law, airlangga university through the lpdp scholarship. his research interests lie in constitutional law and human rights. his main job is to do research, study cases, and write scientific papers, legal opinions, and academic manuscripts. he has published in a range of peer-reviewed journals, books and proceedings. some of the recent are, a book entitled retroactive principles of constitutional court decisions in theory and practice (2020), constitutional law: history, theory, and the dynamic of indonesian state administration (2021), a journal article entitled indonesian constitutional rights: expressing and purposing opinions on the internet (2021, indexed by scopus), judicial consistency in the constitutional court's decision on the judicial review of the blasphemy law (2020), conceptualization of the omnibus law in the national capital relocation (2021), legal protection of indigenous people's rights through strengthening the licensing principles based on social sensitivity (2021), and judicial masculinity: examining the role and effect of woman's justice in the indonesian constitutional court (2021). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 191 available online at http://journal.unnes.ac.id/sju/index.php/jils research article protecting environment through criminal sanction aggravation mahrus ali1 , rofi wahanisa2 , jaco barkhuizen3 , papontee teeraphan4 1 faculty of law, universitas islam indonesia, yogyakarta, indonesia 2 faculty of law, universitas negeri semarang, indonesia 3 department of crimology and criminal justice, university of limpopo, south africa 4 faculty of law, thaksin university, songkhla, thailand  mahrus_ali@uii.ac.id submitted: feb 12, 2022 revised: may 10, 2022 accepted: may 30, 2022 abstract this paper aims to explores the provision of aggravating criminal sanction that protects environment in environmental legislation. by focusing on the four laws as its primary data source, this study employed doctrinal legal research. the results showed that the weight accorded to criminal sanctions in environmental legislation has varied. the pplh law provides for the amplification of criminal threats directed at corporations by adding 1/3 (one-third) of the criminal sentence. only corporation is subject to the penalty a discourse of justice and legal protection in domestic and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 7 issue 1, june 2022 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-7510-9276 https://orcid.org/0000-0002-8630-6603 https://orcid.org/0000-0002-8630-6603 192 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils aggravation provisions of the mining law, and they are only imposed with one-third of the maximum criminal provision of fines. in the ppph law, the imposition of criminal threats weight is simply related to the quantity component. if the culprit is a corporation or state official, the criminal sanction aggravation is increased by one-third. in plantation law, if the offender is a corporate or a government official, then the criminal punishment is intensified. the environment is protected through acts prohibited by environmental legislation, but the criminal threat weight is not directed toward environmental preservation. existing penalty aggravations are confined to only two types of cumulative criminal penalties: jail and fines, both of which have no direct connection to environmental protection. as a result, weighting criminal sanctions refers to the changing quality and quantity issues in order to safeguard the environment. the transition from criminal sanction to treatment, or from one type of treatment to another, was the focus of quality considerations, while the twofold criminal fine system was the focus of quantity element. keywords: criminal sanction aggravation; fine doubled system; environmental protection; environmental legislation; environmental justice http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 193 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 191 table of contents ……………………………..….………. 193 introduction ………………………………….……………. 194 criminal sanction aggravation on the environmental law enforcement in indonesia: some current developments & practices ……………………………………………………… 198 principle of criminal sanction aggravation …………..… 198 the nature of environmental offense …………………… 202 regulatory framework of criminal sanction aggravation in environmental legislations ………..…… 206 orientation of criminal sanction aggravation in environmental legislations ……………………………… 212 how should the environment be protected by imposing criminal sanction aggravation? …. 215 conclusion ………………………………………….…..…… 220 references ………………………………………………….… 221 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. how to cite: ali, mahrus, rofi wahanisa, jaco barkhuizen, and papontee teeraphan. “protecting environment through criminal sanction aggravation”. jils (journal of indonesian legal studies) 7, no. 1 (2022): 191-228. https://doi.org/10.15294/jils.v7i1.54819. http://journal.unnes.ac.id/sju/index.php/jils 194 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction the imposition of criminal threats aggravation in environmental legislations is the subject of this study. this topic is significant for a number of reasons. indonesia is currently facing an issue of significant environmental destruction and/or pollution that is affecting all parts of life,1 including future generations.2 as a result, a multifaceted approach is required to combat it, including through the use of substantive criminal law.3 in addition, the features of criminal activities must be considered when tightening criminal threats. the nature and threat of crime must consider the legal object to be protected when it comes to the substance of criminal acts related to the legal protection of human souls and honour. certain illegal acts that cause loss or harm to the public's health must be accompanied by 1 mehran idrin khan and qianxun xu, an assessment of environmental policy implications under the china-pakistan economic corridor: a perspective of environmental laws and sustainable development, 13 sustainability 11223 (2021); jan g. laitos, standing and environmenal harm: the double paradox, 31 virginia environmental law journal 55-101 (2013); neal shover and aaron s. routhe, environmental crime, 32 crime and justice 321-371 (2005). 2 boer ben, institutionalising ecologically sustainable development: the roles of national, state, and local governments in translating grand strategy into action, 31 willamette law review 261-305 (1995); rowena maguire, incorporating international environmental legal principle into future climate change, 6 carbon & climate law review 101-113 (2012). 3 i. rosyadi, m r. habibi, and n. syam, implementation of criminal law enforcement concept of environmental sustainability (illegal logging in indonesia), 894 iop conference series: earth and environmental science 012002 (2021); sekhroni sekhroni, hartiwiningsih hartiwiningsih, and i gusti ayu ketut rachmi handayani, the implementation of environmental criminal law enforcement to prevent the ground water pollution (the case study of used battery smelting in tegal district, indonesia), 10 international journal of civil engineering and technology 302–308 (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 195 available online at http://journal.unnes.ac.id/sju/index.php/jils a plan for the sort and threat of criminal sanctions that can be used to recoup victim damages, including its criminal sanction aggravation.4 the environmental legislations have such a broad scope. to avoid a lengthy repetition of explanations, this study focuses on four laws: law no. 32 of 2009 on environmental protection and management, law no. 4 of 2009 on mineral and coal mining, law no. 18 of 2013 on forest destruction prevention and enforcement, and law no. 39 of 2014 on plantations. the four were opted because the philosophy of the enactment of the law is oriented to protect environment. the consideration of environmental protection and management act explicitly recognizes and values the importance of human rights in the form of the right to a good and healthy environment for citizens. the mineral and coal mining act's consideration letter c states that in order to achieve sustained national development, the management and business of potential minerals and coal is carried out independently, reliably, transparently, competitively, efficiently, and environmentally sound. according to the legal consideration for the prevention and eradication of forest destruction act, forest areas must be utilized and used responsibly and sustainably, taking into account ecological, social, and economic functions, in order to ensure sustainability for current and future generations. the plantation law states that the earth, water, and natural wealth contained within the territory of the republic of indonesia is a gift of god almighty to be utilized and used for the 4 antonio vercher, the use of criminal law for the protection of the environment in europe: council of europe resolution (77) 28, 10 northwestern. journal of international law & business 442-459 (1990). see also ega rijal mahardika, and muhammad azhary bayu, legal politics of indonesian environmental management: discourse between maintaining environmental sustainability and economic interests, 1 indonesian journal of environmental law and sustainable development 1-28 (2022). http://journal.unnes.ac.id/sju/index.php/jils 196 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils greatest prosperity and welfare of the indonesian people as mandated in the constitution of the republic of indonesia, 1945. a variety of environmental crimes is also directly related to environmental conservation.5 the majority of offenses is designed as a formal offense, which prioritizes aspects of damage prevention and/or environmental pollution.6 there are a number of violations that completely eliminate the need for permits. even if a person or corporation has a permission to do activities related to environment, causing damage and/or contamination to the environment is still a criminal violation.7 this fact must be followed by the types and 5 michael parker, categorizing environmental crimes malum in se or malum prohibitum, 10 texas environmental law journal 93-111 (2010). branches of environmental law are also included in climate change law, renewable energy law, green constitution, and sea and marine protection. however, in practice, this branch of law may differ in each country, but in general it adopts the principles of international law related to the protection of the environment. see also ridoan karim, farahdilah ghazali, and abdul haseeb ansari, renewable energy regulations in indonesia and india: a comparative study on legal framework, 5 jils (journal of indonesian legal studies) 361-390 (2020); winda indah wardani, how can the law protect the forest?, 2 journal of law and legal reform 527-538 (2021); purniawati purniawati, nikmatul kasana, and rodiyah rodiyah, good environmental governance in indonesia (perspective of environmental protection and management), 2 the indonesian journal of international clinical legal education 43-56 (2020). 6 zachary hoskins, criminalization and the collateral consequences of conviction, 12 criminal law and philosophy 625-639 (2018); byung-sun cho, emergence of an international environmental criminal law?, 19 ucla journal of environmental law and policy 22-23 (2001). see also and compare arief ryadi and ali masyhar, forest fires and law enforcement: the capture of indonesian contemporary condition, 2 journal of law and legal reform 39-50 (2021); prasasti dyah nugraheni and andrianantenaina fanirintsoa aime, environmental law enforcement in indonesia through civil law: between justice and legal certainty, 4 the indonesian journal of international clinical legal education (2022). 7 susan f. mandiberg and michael g. faure, a graduated punishment approach to environmental crimes: beyond vindication of administrative authority in the united http://journal.unnes.ac.id/sju/index.php/jils http://www.westlaw.com/link/document/fulltext?findtype=h&pubnum=176284&cite=0127309201&originatingdoc=i03b6611460ac11e08b05fdf15589d8e8&reftype=rq&originationcontext=document&vr=3.0&rs=cblt1.0&transitiontype=documentitem&contextdata=(sc.search) jils (journal of indonesian legal studies) volume 7(1) 2022 197 available online at http://journal.unnes.ac.id/sju/index.php/jils length of criminal sanction, as well as their aggravation, which must also be focused on environmental protection. previous research on the criminal sanction aggravation has been conducted, even though the main focus was on the specific criminal law provision.8 in this context, this study has a significant. the purpose of this study is to examine three aspects: the provisions of criminal sanction aggravation in environmental legislations, the orientation of criminal sanction aggravation in that legislation, and the methods of protecting the environment through aggravating criminal sanction. this paper employed doctrinal legal research that mainly relied on environmental legislations as its primary data source. there were only four laws aimed at protecting environment namely environmental management and protection act, mineral and mining act, plantation act, as well as prevention and suppression of illegal logging act being analyzed. these were implemented on the basis that most of the offenses were primarily to protect environment. the main focus to analyze a list of laws depended on the types and length of criminal sanction as well as its aggravation in relation to the protected legal interest. states and europe, 34 columbia journal of environmental law 481-484 (2009). 8 chairul huda, pola pemberatan pidana dalam hukum pidana khusus, 18 jurnal hukum ius quia iustum 508 (2011). see also adiguna bagas waskito aji, puji wiyatno, ridwan arifin, and ubaidillah kamal, social justice on environmental law enforcement in indonesia: the contemporary and controversial cases, 2 the indonesian journal of international clinical legal education 57-72 (2020); berlian putri haryu lestari, environment and law, what is the indonesian context? a review book ’hukum lingkungan sebuah pengantar untuk konteks indonesia’, prof. dr. h. m. hadin muhjad, sh., m.hum., pt genta publishing, yogyakarta, 2015, 232 pages, isbn: 978-602-1500-25-5, 3 indonesian journal of advocacy and legal services 129-136 (2021). http://journal.unnes.ac.id/sju/index.php/jils 198 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils criminal sanction aggravation on the environmental law enforcement in indonesia: some current developments & practices principle of criminal sanction aggravation several legal professionals have weighed in on the subject of criminal sanction. sudarto defines criminal sanction as “a deliberately inflicted misery on persons who do activities that match certain criteria”.9 punishment is defined by fitzgerald as "suffering as a result of a legally sanctioned offense”.10 roeslan saleh describes a criminal sanction as “a reaction to an offense, which indicates a censure that purposefully inflicted the state on the offender”.11 criminals sanction, according to nicola lacey, are “state-sanctioned punishments for what are commonly regarded as unfavorable repercussions for an unlawful individual or group”.12 as part of law enforcement, it was a response to the violation. this is one of the responses used to compensate victims for losses made by the perpetrator. according to ted honderich, there has three essential natures of the criminal sanction. first, punishment must be subjected to some type of deprivation or misery, which is frequently stated as the 9 sudarto sudarto, kapita selekta hukum pidana (1989) at. 109-110 10 muladi muladi and barda nawawi arief, teori-teori dan kebijakan pidana (1992) at. 2. 11 roeslan saleh, stelsel pidana indonesia (1962). 12 donald nicolson and lois bibbing, feminist perspective on criminal law (2000) at. 51. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 199 available online at http://journal.unnes.ac.id/sju/index.php/jils purpose of the prosecution. this first element is simply a loss or crime experienced by the victim as a result of another subject's conscious acts. in reality, other people's activities are regarded bad not just because they cause others pain, but also due to violation of legally binding laws. second, every criminal sanction must be a product of a legally recognized institution. as a result, the prosecution is not a natural effect of an action, but rather the result of judgments made by a powerful institution. the prosecution is not a victim's act of vengeance against lawbreakers who cause harm. third, the responsible authority reserves the right to bring criminal charges against those individuals who have been determined to have deliberately broken any applicable rules in their community. this third element raises concerns about "collective punishment" such as economic sanctions that disproportionately affect innocent people. criminals sanction, on the other hand, can be defined openly as “punishments meted out by authorized agencies to those who break rules or regulations”.13 herbert l. packer argued that a sentence must meet the following six criteria in order to be classified as criminal sanction: a) the criminal sanction must be a censure or other unpleasant consequences; b) the criminal sanction must be given to a person who has broken the rules; c) the criminal sanction is imposed for an act or directed at the perpetrator of the violation for his actions; d) the criminal sanction must be deliberately imposed by the public on the perpetrator; e) the criminal sanction is imposed and carried out by the competent powers of the law; dan f) the main purpose of a criminal 13 ted honderich, punishment: the suppossed justification revisited (2006). see also m. sholehuddin, sistem sanksi dalam hukum pidana ide dasar double track system dan implementasinya (2003) at. 70-71. http://journal.unnes.ac.id/sju/index.php/jils 200 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils conviction is to prevent violations of the rule of law or retaliate against the actions of the perpetrator, or both.14 the imposition of criminal threats aggravation has two effects: quality and quantity. aspect of quality is defined as “the enactment that occurs as a result of a transition from one sort of light criminal sanction to a more severe criminal sanction”.15 the primary forms of criminal sanctions listed in article 10 of the criminal code must be considered as a benchmark to evaluate whether one type of criminal sanction ranks higher or lower than another. a person who is convicted of intentional murder faces a maximum sentence of 15 years in jail. if the murder is not just intentional but also planned ahead of time, the perpetrator may face the death penalty. because of the shift from one form of lesser criminal to a more severe type of criminal, the transition from imprisonment to death punishment is related to the quality element of tightening criminal sanction. from a quantity standpoint, aggravating criminal sanction is linked to an increase in the number of offenders compared to the number of criminals threatened previously.16 in the formulation of other articles, this concept is still linked to the same type of criminal, but the criminal threat is aggravated. if a person performs a criminal act of ordinary persecution, the maximum penalty is two years in jail. however, if the persecution causes serious injury, the maximum penalty is five years in prison. the transition from two to five years in prison is still in one type of quantity of weighting criminal sanction, namely prison. the pattern of increasing criminal sanctions in the criminal code must refer to first and second books as well as third book of the code. 14 herbert l. packer, (1968), the limits of the criminal sanction (1968) at. 21, 31 15 chairul huda, supra note 8. 16 id., at. 514. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 201 available online at http://journal.unnes.ac.id/sju/index.php/jils the pattern in the first book has been classified as a general pattern of this aggravation, whereas the pattern at the second and last book is classified as a particular pattern of the tightening. the notion of simultaneous offenses (concursus realis) contains in first book of the criminal code, where the criminal threat to the perpetrator is plus one-third of the criminal threat in the violated item. there are three types of systems in theory; the absorbance has been sharpened, the cumulation has been limited, and the cumulation has been pure. the only pattern controlled in the first of the criminal code is the pattern of tightening criminal sanction in the simultaneousness of deeds.17 in the second and third book of the criminal code, the trend of increasing criminal penalties is different. there are two types of criminal penalties that have been tightened: uniform and nonuniform. this uniform category is found in reoffending criminals' offenses, when one-third of the main criminal threat is added to the tightening criminal threat. threats from criminals are also highlighted because of the perpetrator's unique characteristics, such as his or her status as a civil official. furthermore, criminal threats are emphasized due to the special qualifications of the object of the offense, such as persecution carried out against the perpetrator's mother, father, wife, or child, whose criminal plus a third of the maximum in prison sentence is imposed.18 in the improvement of the quality and quantity of criminal threats, non-uniform categories are found. the imposition occurs as a result of a shift in the kind of criminal sanction, such as a prisoner being sentenced to death for premeditated murder. the pattern of tightening criminal threat in the criminal code is to utilize a scheme in which the threatened criminal sanction becomes a more severe if 17 andi zaenal abidin and andi hamzah, bentuk-bentuk khusus perwujudan delik dan hukum penitensier (2006) at. 238. 18 chairul huda, supra note 8., at. 514-515. http://journal.unnes.ac.id/sju/index.php/jils 202 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils the special maximum in a criminal offense is equivalent to the general maximum for a prison term (death penalty). the nature of environmental offense aspects of civil law, state administrative law, and environmental law are all included in the material prescribed in environmental law. this reality has ramifications for the salient characteristics of environmental offenses, which result in a tangled web of administrative and criminal legislation.19 environmental offense is usually associated with administrative requirements, such as permit violations. the lack of environmental degradation is contingent on the fulfilment of administrative regulations' requirements or provisions.20 in this context, michael faure distinguishes between administrative offenses that are independent of environmental criminal law and administrative offenses that are dependent on environmental criminal law (administrative dependent crimes).21 19 michael g. faure, ingeborg m. koopmans, and johannes c. oudijk, imposing criminal liability on government officials under environmental law: a legal and economic analysis, 18 loyola of los angeles international and comparative law journal 558 (1996). 20 d. schaffmeister, kekhawatiran masa kini (pemikiran mengenai hukum pidana lingkungan dalam teori & praktik), tristan p. moeliono (trans) (1994) at, 159. see also erla sari dekiawati, law enforcement of illegal logging in indonesia: problems and challenges in present and the future, 1 indonesian journal of environmental law and sustainable development 47-68 (2002). 21 michael faure, "towards a new model of criminalization of environmental pollution. the case of indonesia”, in michael faure & nicole niessen (eds), environmental law in development lesson from the indonesian experience (2006) at. 190-196; mas ahmad santosa, good governance & penegakan hukum (2001) at. 241-242 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 203 available online at http://journal.unnes.ac.id/sju/index.php/jils administrative independent crimes are defined as acts that can be classified as crimes without first determining whether or not administrative violations have occurred. in this case, administrative offenses have no relevance on criminal law. it is possible to apply criminal sanctions without having to rely solely on administrative infractions. administrative punishments have no bearing on criminal sanctions.22 administrative dependent crimes are defined as criminal offenses that are based on administrative violations such as permit violations or environmental quality regulations. administrative rules are entirely responsible for the creation of criminal punishments. the lack of a license paper or certificate can be used to claim that the conduct is a simple offense. these criminal sanctions are based on the formation of formal offenses.23 according to andi hamzah, the application of criminal law to environmental law crimes is heavily influenced by administrative law, particularly in the area of licensing. there are other permits-related phrases in environmental legislation that are comparable. because of the nature of the offense, the application of environmental criminal law is mainly reliant on administrative law.24 regulatory offenses, often known as ordeningstrafrecht, are administratively dependent offences. according to barda nawawi arief, regulatory offenses are defined as "criminal law in the realm of administrative law violations",25 while roeslan saleh defines them as "the cover of a compelling arrangement since their orientation carries 22 grahat nagara, perkembangan sanksi administratif dalam penguatan perlindungan lingkungan terkait eksploitasi sumber daya alam (studi kasus: sektor perkebunan, pertambangan, dan kehutanan), 3 jurnal hukum lingkungan 37 (2017). 23 id, at. 36. 24 andi hamzah, penegakan hukum lingkungan (2016) at. 132-133. 25 barda nawawi arief, kapita selekta hukum pidana (2013) at. 10. http://journal.unnes.ac.id/sju/index.php/jils 204 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils out wide discretion."26 regulatory offenses, according to andi hamzah, are infractions of regulations.27 this word refers to an act that is illegal and subject to criminal penalties only because it is illegal. it can be done if the law does not prohibit it. regulatory offenses, according to stephen s. schwartz, are offenses created by legislators to maintain public order. acts are prohibited not because they are morally bad (violating societal norms), but because they are illegal.28 regulatory offenses are related to legally regulated public activities and services.29 in order to conduct some actions, a person must meet specific prerequisites. violations of regulatory regulations that are subject to criminal penalties are referred to as regulatory offenses.30 regulatory offenses are commonly characterized by several natures: a) it plays a role in regulating certain social activities with the rise of the regulatory state; b) it is mostly resolved by regulatory agencies; c) it is an ‘artificial’ crime or malum prohibitum ( a morally neutral offence), which is different from a ‘real’ crime or malum in se in traditional criminal law, and therefore; and d) it incurs strict liability and reverse onus of proof.31 regulatory offenses are sometimes known as public welfare offenses. one of the most notable characteristics of public regulatory offenses is that an offense does not necessarily necessitate culpability. for established public regulatory offenses, negligence is considered 26 roeslan saleh, beberapa asas hukum pidana dalam perspektif (1983) at. 10. 27 andi hamzah, supra note 24., at. 113. 28 stephen s. schwartz, is there a common law necessity defense in federal criminal law?, 75 university of chicago law review 1281 (2008). 29 mireille hildebrandt, justice and police: regulatory offences and the criminal law, 54 new criminal law review (2009). 30 federico picinali, the denial of procedural safeguards in trials for regulatory offences: a justification, 11 criminal law and philosophy 685 (2017). 31 dat t. bui, procedural proportionality: the remedy for an uncertain jurisprudence of minor offence justice, 12 criminal law and philosophy 88 (2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 205 available online at http://journal.unnes.ac.id/sju/index.php/jils sufficient. the reason for this is because enforcement has shifted from protecting private interests to protecting social or public interests. regulatory violations in the public sector constitute a clash of values. on the one hand, it is critical for the public to maintain high standards of effective public health and safety enforcement so that potential victims have recourse. on the other side, there has been a shift in the way morally innocent people are treated.32 regulatory offenses are often known as malum prohibitum offenses which means "legally wrong" in english”. malum prohibitum" crimes are defined as acts that are classified as crimes because they are prohibited by law. if the law does not forbid anything, it is not a crime. each country has its own set of laws when it comes to conduct that fall under the category of malum prohibitum offenses. prohibited activities that are subject to criminal penalties are classified as malum prohibitum offenses in indonesia. barda nawawi arief noted that between 1985 and 1995, there were 29 legislative products in the form of statutes comprising chapters on criminal provisions. the majority of the legislation was found to be administrative in nature.33 according to supriadi, there were 84 legislation with criminal provisions in the last nine years, specifically from 2005 to 2014.34 criminal activities under the taxation act, traffic and road transportation act, narcotics act, mineral and coal mining act, plantation act, and fishery act are all examples of malum prohibitum offenses. malum prohibitum crimes differ from malum in se (inherently wrong) crimes, in which the latter refers to an act that is, by definition, 32 rick libman, regulatory offences and principles of sentencing: is the "patchwork quilt" in need of reshaping and reform?, dissertation, doctor of philosophy, graduate program in law, york university, toronto, at. 16-17. 33 barda nawawi arief, supra note 25., at. 11. 34 supriadi supriadi, tindak pidana sebagai kejahatan dan pelanggaran dalam undangundang pidana khusus, 27 mimbar hukum 394 (2015). http://journal.unnes.ac.id/sju/index.php/jils 206 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils a criminal. even if the law does not expressly ban it, it is nonetheless a crime, similar to robbery, rape, murder, blasphemy, humiliation, and corruption. the distinction between crimina and contraventions can be traced back to medieval natural law doctrine, which distinguished between crimina and contraventions. mala in se is referred to as crimina, and mala prohibita is referred to as contraventions.35 this concept is based on roman law, which distinguishes between leges (written law) and ius civile (unwritten law) applied by judges. the dichotomy between the ius naturale, the unwritten rule of nature coming from man's thinking or god's revelation, and leges, the positive (written) law produced by the government, is embodied in this judge's opinion. this distinction is on an ontological domain. in and of itself, crimina/mala is a crime with a reference to its bad nature. it is bad despite the fact that there is no law (law) against it, whereas contraventions are only considered illegal when the government has decided to make particular acts illegal. it is only because the law prohibits it that it becomes bad or banned.36 regulatory framework of criminal sanction aggravation in environmental legislations the imposition of tightening criminal threats is covered under law no. 32 of 2009 on environmental protection and management (pph law). criminal threats are made because some conduct, whether committed intentionally or not, result in prohibited legal repercussions. article 98 paragraph (1) promulgates that “any person 35 william l. barnes jr. revenge on utilitarianism: renouncing a comprehensive economics theory of crime and punishment, 74 indiana law journal 9-12 (1999). 36 mireille hildebrandt, supra note 29., at. 51. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 207 available online at http://journal.unnes.ac.id/sju/index.php/jils who intentionally commits an act that results in the exceeding of ambient air quality standards, water quality standards, sea water quality standards, or standard criteria for environmental damage is punished with a prison sentence of at least 3 (three) years and a fine of at least 3 billion (at most 10 billion)”. if the act causes injury and/or human health hazards, the criminal sanction is enhanced to a minimum of 4 (four) years in jail and a maximum of 12 (twelve) years in prison, as well as a fine of at least 4 billion (at most 12 billion)." (verse 2 of article 98). if the conduct causes serious harm or death, the criminal threat is aggravated by a jail sentence of at least 5 (five) years and up to 15 (fifteen) years, as well as a fine of at least 5,000,000,000.00 (five billion rupiah) and up to 15 billion. article 99 paragraph (3) stated that “any person who, due to his negligence, results in the exceeding of ambient air quality standards, water quality standards, sea water quality standards, or standard criteria for environmental damage is punishable by imprisonment of at least 1 (one) year and a maximum of 3 (three) years and a fine of at least 1 billion (at most 3 billion) (article 99 paragraph 2)”. the criminal threat is aggravated to be punishable by imprisonment of at least 2 (two) years and a maximum of 6 (six) years and a fine of at least 2 billion (at most 6 billion) if the act results in injuries and/or human health hazards. if the act results in serious injury or death, the criminal threat is further aggravated into a prison sentence of at least 3 (three) years and a maximum of 9 (nine) years and a fine of at least 3 billion (at most 9 billion) (article 99 paragraph 3). in the mineral and coal mining act, tightening criminal threats are only imposed against corporations that commit criminal acts in article 158, article 159, article 160, and article 161. the pattern used is uniform, which adds one-third of the maximum criminal penalty imposed. article 163 paragraph (1) reads as follows: http://journal.unnes.ac.id/sju/index.php/jils 208 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils in the case of criminal acts as referred to in this chapter carried out by a legal entity, in addition to imprisonment and fine against its administrators, the criminal sanction that can be imposed against the legal entity is in the form of a criminal fine with a penalty plus 1/3 (one-third) of the maximum criminal penalty imposed. the rule specifies that criminal threats in the form of fines equal to plus one-third of the maximum criminal provisions apply exclusively to corporations, not to corporate leaders. even though the corporation is utilized as a criminal offender, if the criminally accountable and criminally sentenced individuals are restricted to the administrator, tightening criminal threats cannot be enforced. individuals who execute criminal acts of mineral and coal mining on their own, rather than acting for and/or on behalf of businesses, are not subject to the criminal threats stated in article 163 paragraph (2) above. this restriction, which is solely applicable to corporations, may be predicated on mineral and coal mining companies, which are typically organized as corporations. more specifically, there are three types of mining companies. to begin, there are business actors in the shape of corporations, cooperatives, and individuals. mining business license (iup),37 production business mining business license,38 non-metal mineral mining business license area,39 rock mining business license area,40 coal mining business license area,41 and implementing mining business license42 all fall under this 37 article 38 of mineral and mining law. 38 article 46 section (2) of mineral and mining law. 39 article 54 of mineral and mining law 40 article 57 of mineral and mining law 41 article 60 of mineral and mining law. 42 article 125 section (2) of mineral and mining law. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 209 available online at http://journal.unnes.ac.id/sju/index.php/jils business actor's initial theory. an individual, firm company, or commodity company is what is meant by a person as a mining business actor in iup.43 in addition, local citizens, including individuals and community groups and cooperatives, own mining firms. the theory of these two business players only applies to people's mining licenses, which are permits to conduct mining operations in people's mining areas with restricted land and investment.44 mining business players in the form of indonesian legal entities, such as state-owned enterprises, regionally owned businesses, or private businesses. only special mining permits, i.e. licences to conduct mining businesses in the field of special mining business licenses, are covered by the theory of these three business players.45 in the law on prevention and suppression of illegal logging (ppph law), the imposition of criminal threats aggravation is only related to the quantity aspect in which the culprit is a corporation. the threat of criminal sanctions is aggravated for corporation, which forms as follows: 1. individuals who perform unlawful acts under article 82 face the prospect of criminal punishment including imprisonment for at least one year and a maximum of five years, as well as a fine of at least 500 million dollars (at most 2.5 billion). if the offense is committed by a corporation, the penalty is aggravated to a minimum of 5 years and a maximum of 15 years in jail, as well as a minimum fine of 5 billion dollars and a maximum fine of 15 billion. 2. in the case of criminal acts in article 83 committed by individuals due to negligence, the threat of criminal sanctions is in the form of 43 article 6 section (3) of government regulation number 24 of 2012 on the implementation mineral and mining business activities. 44 article 67 (1) of mineral and mining law. 45 article 75 ayat (2) of mineral and mining law. http://journal.unnes.ac.id/sju/index.php/jils 210 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils imprisonment of at least 8 months and a maximum of 3 years, with a minimum fine of 10 million and a maximum of 10 billion. if it is done by the corporation, then the criminal threat is tightened to a minimum of 5 years imprisonment and a maximum of 15 years, as well as a minimum fine of 5 billion and a maximum of 15 billion. 3. in the case of criminal acts in article 84 committed by individuals due to irregularity, the criminal threat is in the form of imprisonment of at least 8 months and a maximum of 2 years, with a minimum fine of 10 million and a maximum of 2 billion. if the criminal act is committed by a corporation, then the criminal threat is increased to a minimum prison term of 2 years and a maximum of 15 years, as well as a minimum fine of 2 billion and a maximum of 15 billion. 4. in the event that the criminal acts in article 85 are committed by individuals intentionally, the criminal threat is in the form of imprisonment of at least 2 years and a maximum of 10 years, as well as a minimum fine of 2 billion and a maximum of 10 billion. but if the crime is committed by a corporation, then the criminal threat is increased to a minimum prison term of 5 years and a maximum of 15 years, as well as a minimum fine of 5 billion and a maximum of 15 billion years; and 5. in the case of criminal acts in article 86 committed by individuals intentionally, the criminal threat is in the form of imprisonment of at least 1 year and a maximum of 5 years, with a minimum fine of 500 million and a maximum of 2.5 billion. but if the crime is committed by a corporation, then the criminal threat is increased to a minimum prison term of 5 years and a maximum of 15 years, as well as a minimum fine of 5 billion and a maximum of 15 billion years. criminal threat aggravation is also made in the event that the culprit is a public official. article 107 of the ppph law states that any http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 211 available online at http://journal.unnes.ac.id/sju/index.php/jils illegal logging activities and/or unauthorized use of forest areas involving officials, the criminal plus 1/3 (one-third) of the main criminal threat, as defined in articles 12 to 17 and 20 to 26. a prevalence that occurs in numerous criminal laws is the addition of one-third of the primary criminal threat in the case of officials committing ppph offences. this one-third increase solely applies to officials; it does not apply to knowingly committed criminal acts by people or corporate criminal conduct. as a result, the addition of criminal weight to the ppph law is exclusively relevant to one category of crime. the law forbids the imposition of criminal threats by converting them from a less serious to a more serious type of criminality. criminal threats ranging from imprisonment to the death sentence, as well as criminal penalties leading to incarceration, are prohibited under the ppph law. in law no. 18 of 2004 on plantations, the imposition of criminal threats is related to two forms. first, the imposition of criminal threats because certain acts are committed by corporations. this first form contains in the formulation of article 113 paragraph (1). it is stated that in the event that the acts referred to in article 103, article 104, article 1 05, article 106, article 107, article 108, and article 109 are committed by the corporation, in addition to its management is punished under article 1 03, article 104, article 1 05, article 106, article 107, article 108, and article 109, the corporation is punishable with a maximum fine in addition to 1 /3 (one-third) of the fine of each of these. thus, the threat of criminal sanction is aggravated to 1/3 (one-third) for a corporation committing a prohibited offense. second, the imposition of criminal threats due to certain acts committed by state officials as promulgated in article 113 paragraph (2). it is stated that “in the case of acts referred to in article 103, article 104, article 105, article 106, article 107, article 108, and article 109 carried out by officials as ordered persons or persons who, because of their position, http://journal.unnes.ac.id/sju/index.php/jils 212 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils have authority in the field of plantations, the official is punishable with a criminal sanction plus 1/3 (one-third)”. based on the above explanation, it is argued that the imposition for criminal threats in the plantation law is only related to the qualification of the subject of an offense. if the criminal act in the law is committed by a corporation, then the threat of criminal fines is aggravated by one-third of the maximum criminal threat of fines in the article violated. in addition, in a case where criminal acts in the law committed by officials, the criminal threat is aggravated by onethird of the maximum criminal threat in the article violated. orientation of criminal sanction aggravation in environmental legislations prohibited acts whose threat of criminal sanctions is aggravated in the mineral and coal mining law, pplh law, ppph law, and plantation law lead more to environmental protection. this can be seen from the forms of prohibited acts, such as; 1) carrying out activities that cause forest destruction; 2) taking actions that result in damage to gardens and/or other assets; unauthorized use of plantation land and/or other actions that result in disruption of plantation business; 3) opening and/or cultivating land by means of burning that results in pollution and damage to environmental functions; 4) performing actions that result in the exceeding of ambient air quality standards, water quality standards, sea water quality standards, or standard criteria for environmental damage; (5) illegally felling trees in forest areas; (6) logging trees in forest areas that are not in accordance with forest utilization permits; and (7) conducting mining activities in forest areas without the permission of the minister. however, given the dominance of prohibited acts, it can http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 213 available online at http://journal.unnes.ac.id/sju/index.php/jils be concluded that the orientation of criminal threat aggravation in the three laws has led to environmental protection. to know, it is necessary to look carefully at the types and duration of criminal threats in each of these acts. the forms of criminal sanctions in the four laws are imprisonment and criminal fines formulated cumulatively (imprisonment and fines).46 there are two legal implications when criminal sanctions are formulated cumulatively. first, the judge has nothing but to impose two types of criminal sanctions on perpetrators who are proven to have committed criminal acts in the environmental field, although according to the judge, the perpetrator is more likely to be sentenced to prison only or even a fine. second, in the context of environmental legislation, the system of criminal formulation cumulatively shows that the perpetrator who commits a criminal act is human and does not include corporations. because a corporation has distinctive characteristics, it is impossible for a corporation to be sentenced to prison.47 the length of criminal threats in the law in the field of the environment is formulated variously. in law no. 4 of 2009 on mineral and coal mining, the threat of imprisonment ranges from a maximum of 1 year to a maximum of 10 years. while criminal fines range from at most 100 million to at most 10 billion. in law no. 32 of 2009 on environmental management and protection, the threat of imprisonment starts at a minimum of 1 year and a maximum of 3 years, as well as a minimum of 5 years and a maximum of 15 years. criminal fines begin at 1 billion and can reach 3 billion, with fines of at least 5,000,000,000.00 (five billion rupiah) and no more than 15 46 barda nawawi arief, kebijakan legislatif dalam penanggulangan kejahatan dengan pidana penjara (2000) at. 152. 47 gustavo a. jimenez, corporate criminal liability: toward a compliance-orientated approach,26 indiana journal of global legal studies 111 (2019). http://journal.unnes.ac.id/sju/index.php/jils 214 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils billion. thus, in addition to cumulatively formulated criminal threats (imprisonment and fines), environmental management and protection laws also regulate specific minimum criminal threats.48 specifically for corporations, the threat of imprisonment or criminal fines is aggravated into such and criminal threats in each article are violated. in the ppph law, criminal threats are cumulatively reported between imprisonment and fines. this law also regulates special minimum criminal threats whose criminal length varies, namely: a) imprisonment of a minimum of 1 year and a maximum of 5 years; b) imprisonment of at least 8 months and a maximum of 2 years; and c) imprisonment of a minimum of 8 years and a maximum of 15 years. the criminal penalties also vary, namely: a) a minimum of 100 million and a maximum of 1 billion; b) a minimum of 10 billion and a maximum of 100 billion; and c) a minimum of 20 billion and a maximum of 1 trillion.49 the threat of imprisonment under the plantation law ranges from a maximum of three years to a maximum of ten years. the total amount of criminal fines ranges from a maximum of three billion to a maximum of ten billion. according to the above statement, while there are a number of forbidden behaviours that lead to environmental protection, the three laws' criminal threat enforcement orientation has not resulted in environmental conservation. there are two justifications offered. to begin with, the categories of criminals threatened by existing criminal enforcement measures are limited to only two types: jail and fine. offenders' imprisonment has nothing to do with environmental protection. even if a person is found guilty of forestry, plantation, and environmental management and protection and condemned to 48 harkristuti harkrisnowo, rekonstruksi konsep pemidanaan: suatu gugatan terhadap proses legislasi dan pemidanaan di indonesia (2003). 49 article 94 of ppph law http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 215 available online at http://journal.unnes.ac.id/sju/index.php/jils prison, the consequences are unable to improve those three things. criminal fines are the same way. the fact that the criminals pay fines to the state has nothing to do with environmental conservation efforts. so yet, there has been no evidence that the fines are being used to restore harmful living environment. it is also argued that the threat of criminal fines is the most in mineral and coal mining laws and plantation laws, amounting to 10 billion. the criminal threat of fines in environmental management and protection laws amounted to 15 billion. in the ppph law, there is an arrangement regarding a maximum fine of 1 trillion, but that only applies to corporations that commit criminal acts as referred to in article 94, paragraph (2). even with such a fine amount, if indeed the payment of fines by the perpetrators to the state is used directly for the benefit of environmental conservation, the amount will not be able to repair the damaged environment, especially if the damage is very severe.50 how should the environment be protected by imposing criminal sanction aggravation? there needs to be a change in the patterns of criminal sanction aggravation both quantity and quality in environmental legislation. if the quality aspect is interpreted to refer to a transition from one type of lighter criminal sanction to a more serious type of penalty, this concept plainly presents a challenge when employed as a theoretical basis for application of criminal threats aggravation based on 50 michael faure, the revolution in environmental criminal law in europe, 35 virginia environmental law journal 335-336 (2017); hamdan qudah, towards international criminalization of trans boundary environmental crimes, dissertation, new york: pace law school (2004), at. 71 http://journal.unnes.ac.id/sju/index.php/jils 216 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils environmental protection. except for criminal fines, all forms of criminal punishment, such as the death sentence, incarceration, and imprisonment, are not directly tied to environmental protection. these forms of criminal punishments can only be applied if the victim of the crime is a human, but they cannot be imposed if the victim is the environment.51 the imposition of criminal threats discussed in the previous section does not encompass the existence of the environment as a "victim" of criminal acts in terms of quantity. this is because, even if a prison sentence of 10 to 20 years is imposed, there is still no causal link between the perpetrator's conduct and the damage to the environment. as a result, except for the type of criminal fine, the idea of quality and quantity of criminal sanction aggravation in criminal legislation is difficult, if not impossible, to apply if the focus is on environmental protection. one of the reasons is that the legal protection provided to individuals and the environment as victims of crime differs. when utilizing criminal enforcement in terms of quality and quantity, it is vitally important to consider the victim's right and interest. the concept of quality and quantity cannot be used if the victim is the environment. the forms of sanctions threatened, including the imposition of criminal threats, varied due to variances in the orientation of legal protection. the sorts of sanctions that can be administered to perpetrators who are proven to perform illegal acts and cause injury or damage to the environment in this connection are more in the form of sanctions actions (treatment), such as confiscation of income acquired from criminal activity. closure of all or part of the 51 james gacek, richard jochelson, and alicia dueck-read, critiquing the conception of “crimes against nature”: the necessity for a new “natural” law, 6 international journal of offender therapy and comparative criminology 345-468 (2022). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 217 available online at http://journal.unnes.ac.id/sju/index.php/jils business and/or activity location, improvement as a result of criminal acts, revelation of doing what is done without permission, and/or placement of the firm under the company. even if criminal sanctions (punishment) are used, they are confined to fines. it is important to distinguish between punishment and treatment. herbert l. packer defines criminal sanctions as “any particular disposition, or the range of admissible dispositions, that the law authorizes (or appears to authorize) in circumstances when a person has been found guilty of a crime through the unique processes of criminal law”.52 the death sentence, life imprisonment, incarceration, and criminal fines are all examples of punishments. meanwhile, treatment is proactive rather than reactive, with the goal of restoring certain circumstances for perpetrators and victims, both individuals and civil legal entities. it is based on the philosophy of determinism in various forms of dynamic sanctions (open system) and specifications of non-suffering or deprivation of independence.53 assets for corporations that perform criminal crimes, as well as the restitution of all losses caused by the perpetrator's actions. the goal of criminal sanctions is to deter undesirable behaviour and retaliate for wrongdoings (retribution for perceived wrongdoing).54 the main focus is on efforts to aid the perpetrator, not on the perpetrator's actions in the past or future.55 as a result, criminal sanctions place a premium on the element of retribution (appeal). it is the intentional infliction of pain on the wrongdoer. while the action 52 herbert l. packer, supra note 14., at. 35. 53 m. sholehuddin, supra note 13. at. 210. 54 bidish sarma, using deterrence theory to promote prosecutorial accountability, 21 lewis & clark law review 596-597 (2017). 55 tyrone kirchengast, penny crofts, thomas crofts, stephen gray, bronwyn naylor, steven tudor, waller & williams criminal law texts and cases 14th edition (2020) at. 16. http://journal.unnes.ac.id/sju/index.php/jils 218 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils system's consequences are based on the essential concepts of community protection and offender coaching or treatment.56 in the sense that both criminal penalties and treatment have a suffering aspect, both sanctions suffer from their nature. the person who is convicted and sentenced to jail is "forced" to experience the pain of living in a communal facility for a period of time. similarly, when a person is found guilty and sentenced to treatment in a hospital for drug addiction, the person is forced to experience the pain of being in the institution. in addition to pain, criminal sanctions also carry a stigma. this aspect of censure does not present in the treatment because its nature only suffers.57 the essence of the distinction between criminal sanctions and treatment must be linked to the imposition of environmental-based criminal threats aggravation in order for the consequences to differ from those imposed on criminal threats aggravation with a humanprotection orientation. in terms of quality, criminal threats aggravation should be transitioned from criminal sanctions to treatment, or from one type of treatment to another. if a person is found guilty of an environmental crime that results in environmental damage, the criminal threat is a fine; however, if the damage is severe, the criminal threat aggravation is the confiscation of all profits derived from criminal acts, with all profits going toward repairing the damaged environment. if the harm is significant, the criminal threat aggravation includes the seizure of all proceeds made from criminal conduct, as well as the need to repair any damage caused by the perpetrator's actions. a criminal investigation is required in order for 56 michele cotton, back with a vengeance: the resilience of retribution as an articulated purpose of criminal punishment, 37 american criminal law review 1316 (2000) 57 dan markel, executing retributivism: panetti and the the future of the eighth amendment, 103 northwestern university law review 1191 (2009). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 219 available online at http://journal.unnes.ac.id/sju/index.php/jils the punishments to be effective. the types of sanctions imposed on violators are indeed intimately tied to efforts to enhance the environment with the enforcement of such criminal threat aggravation. the change in the concept of criminal sanction aggravation of quality aspects oriented to environmental conservation has ramifications for improperly including "deprivation of profits derived from criminal acts," "closure of all or part of business premises and/or activities," "improvement due to criminal acts," "the sacrifice of doing what is improperly neglected," and/or "placement of companies under the establishment" in the environmental protection and management act. these types of sanctions are more severe than prison terms, incarceration, and criminal fines, based on their quality. the expenditures that must be expended when a person is sanctioned in the form of an obligation to repair the complete consequences of a criminal conduct because it is demonstrated to create substantial environmental harm are far larger than the criminal penalty of 5 billion. as a result, these types of penalties should not be imposed on new perpetrators. even if it is kept as an additional criminal sanction, it must be possible to administer the sanction without having to combine it with the primary criminal sanction.58 the imposition of environmental conservation-related criminal threats is only possible in terms of quantity when the criminal form is a criminal fine. however, the tendency is to employ a doubled/threefold system to impose criminal threats aggravation by not creating the nominal amounts of fines in the formulation of each article for which a criminal threat exists.59 because it was previously promulgated in article 15 paragraph (1) of law no. 21 of 2007 on 58 suhariyono suhariyono, pembaruan pidana denda (2012) at. 41. 59 daniel n. robinson, punishment, forgiveness, and the proxy problem, 18 notre dame journal of law, ethics and public policy 374-375 (2004). http://journal.unnes.ac.id/sju/index.php/jils 220 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils combating criminal acts of trafficking in persons and article 130 paragraph (1) of law no. 35 of 2009 on narcotics, the system is not new in the indonesian application system. as with the idea of preventive, the amounts of fines that must be paid by the culprit must be more than the seriousness of the offense committed (deterrence).60 the state is directly involved in environmental protection measures. if no agreement is reached, the application of criminal threats of fines under the doubled system will have no bearing on environmental protection. conclusion the promulgation of criminal sanction aggravation in various environmental legislation has been varied. criminal threats aggravation addressed to corporations with the addition of 1/3 (onethird) of the criminal sanction is found in pplh law. the penalty aggravation is only enforced against corporations under the mining law, and they only imposed with one-third of the maximum criminal provision of fines imposed. the imposition of criminal threats weight is only related to the quantity component in the ppph law, meaning the imposition of criminal sanction aggravation if the perpetrator is a corporate or official, plus one-third of the main criminal threat. the aggravated penalty is exclusively relevant to the qualification of the topic of offenses in the plantation law. if the offender is a company or a government official, then the criminal sanctions is aggravated. acts forbidden by environmental legislation safeguard the 60 steven shavell, a simple model of optimal deterrence and incapacitation, 42 international review of law & economics 14 (2015); thomas j. miles, empirical economics and study of punishment and crime, 237 university of chicago legal forum 238 (2005). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 221 available online at http://journal.unnes.ac.id/sju/index.php/jils environment, but the criminal threat weight is not geared toward environmental preservation. existing penalty aggravations are limited to only two sorts of criminal sanction, namely incarceration and fines, where have no direct relevance to environmental protection. hence, to protect environment, weighting criminal sanction refers to the altering quality and quantity aspects. quality considerations centered on the transition from criminal sanction to treatment or from one type of treatment to other, while quantity element centered on the doubled system of criminal fine. references abidin, andi zaenal, and andi hamzah. bentuk-bentuk khusus perwujudan delik dan hukum penitensier. 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"the use of criminal law for the protection of the environment in europe: council of europe resolution (77) 28". northwestern journal of international law & business 10, no. 3 (1990): 442-459. wardani, winda indah. “how can the law protect the forest?”. journal of law and legal reform 2, no. 4 (2021): 527-538. https://doi.org/10.15294/jllr.v2i4.48757. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.1016/j.irle.2014.11.005 https://doi.org/10.1086/655356 https://doi.org/10.22146/jmh.15878 https://doi.org/10.15294/jllr.v2i4.48757 228 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils environmental justice cannot be separated from social justice. the two are deeply intertwined. laura coleman about authors mahrus ali is a faculty member of faculty of law universitas islam indonesia. he has published several papers at scopus indexed journals. his research interest includes environmental crimes, economic crimes, victimology, penal policy, as well as criminal law and human rights. rofi wahanisa is a senior lecturer at faculty of law universitas negeri semarang. she completed her doctoral degree at universitas diponegoro, semarang. she has also published papers at scopus indexed journals. her research interest includes environmental law, spatial planning, and agrarian law. jaco barkhuizen is currently head and professor in the department of criminology and criminal justice at the university of limpopo, south africa. his research interests are victim rights and specifically victim rights in south africa, human trafficking in south africa, serial murder in south africa, sexual victimization, and sex worker victimization. he has published in journals and chapters in books in south africa, indian, japan and north america and has delivered papers in north america, europe, africa and asia. papontee teeraphan is an associate professor at the faculty of law, thaksin university, songkhla, thailand. his research interest includes juvenile delinquency and juvenile justice, children protection law, as well as criminal law and criminal justice. he has published several papers at scopus indexed journals. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 339 available online at http://journal.unnes.ac.id/sju/index.php/jils research article third-party risk in the availability payment: the palapa ring western package andrew william john nathaniel1, yetty komalasari dewi2  shatila dhiyaannisaa sani3 1,2 faculty of law, universitas indonesia, depok, indonesia 3 school of law, university of california-berkeley, the united states  yettykomalasari@gmail.com submitted: feb 28, 2022 revised: april 30, 2022 accepted: may 30, 2022 abstract the palapa ring western package is the first public private partnership infrastructure project in indonesia implementing availability payment (ap). prevailing regulations allow the government contracting agency (gca) and implementing business entity (ibe) to determine the system of incentives and penalties of ap in their project contract. this research explores two main issues: (1) whether the ibe has obligation for contingent cost liabilities outside of a discourse of justice and legal protection in domestic and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 7 issue 1, june 2022 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0003-1901-4405 340 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils the contractually determined ap amount in the occurrence of damage caused by a third party which interrupts or disrupts infrastructure service availability and (2) whether the gca has the right to penalize ap amount to the ibe in the occurrence of damage by a third party which interrupts or disrupts service availability. by applying normative legal research using the statute approach, this research concludes that in this project, the ibe has obligation for contingent cost liabilities outside of contractually determined ap amount in the occurrence of damage by a third party and the gca has the right to penalize ap amount if the ibe fails to maintain service availability. the contractual allocation of operational and maintenance risk to the ibe creates obligation to bear costs during the project lifetime including those due to third-party risk. further, the use of formula to calculate ap to ibe is solely based on performance data in maintaining service availability according to contractually agreed standards. thus, the use of ap in the palapa ring western package may be a point to reference for future public private partnership infrastructure projects. keywords: availability payment, contract, public private partnership, third-party risk. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 341 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract …………………………………………………..…. 339 table of contents …………………………..……….…... 341 introduction ……………………………………………… 342 relationship of risk & obligation ..………………. 348 contractual obligation of ibe ……………..…… 362 risks in ppp scheme ……………………………….…..… 352 availability payment roi scheme in public private partnerships …………………………….. 367 contractual rights of the gca in the palapa ring western package ………………………….. 374 availability payment in the palapa ring western package ppp partnership agreement ……………………………………………. 379 conclusion ……………………………………….…..…… 382 references ……………………………………………….… 383 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. how to cite: nathaniel, andrew william john, yetty komalasari dewi, and shatila dhiyaannisaa sani. “third-party risk in the availability payment: the palapa ring western package”. journal of indonesian legal studies 7, no. 1 (2022): 339-390. https://doi.org/10.15294/jils.v7i1.55184. http://journal.unnes.ac.id/sju/index.php/jils 342 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction infrastructure is a fundamental need to encourage economic growth and achieve effective development especially for developing countries.1 in the early 1990s, public private partnership (“ppp”) began to be developed in several countries to accommodate for limited financing for infrastructure development activities while at the same time encouraging performance optimization and cost efficiency.2 in 2005, the government of indonesia (“goi”) recognized the country’s distressing need for infrastructure development and included it as a key objective in creating the 2005-2025 rencana pembangunan jangka panjang nasional/long-term national development plan (“ltndp”), a 20 (twenty) year national development planning document.3 the 2005-2025 ltndp, regulated under law number 17 year 2007 on ltndp (“law 17/2007”), is divided into 5 (five) year periods known as the medium-term national development plans (“mtndp”), which has entered its last stage (2020-2025).4 in order to make use of ppps. the goi issued presidential regulation number 67 year 2005 on cooperation between government and business entities in infrastructure provision (“pr 1 jean-jacques dethier & alexander moore, infrastructure in developing countries: an overview of some economic issues, zefdiscussion papers on development policy (2012). 2 andre ribeiro, karisa; dantas, private-public partnership initiatives around the world: learning from the experience, university of canterbury (2006). 3 bappenas, visi dan arah pembangunan jangka panjang (pjp) tahun 2005-2025, badan perencanaan pembangunan nasional (2005). 4 law number 17 year 2007 on the long-term national development plan of 2005-2025 (state gazette of indonesia year 2007 no. 33), (2007), https://peraturan.bpk.go.id/home/details/39830. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 343 available online at http://journal.unnes.ac.id/sju/index.php/jils 67/2005”) to regulate infrastrcutre ppps.5 however, since 2005, indonesia’s infrastructure development has had no notable progress despite multiple amendments to ppp regulation. such is reflected in the world economic forum’s global competitiveness report 2019, where indonesia’s infrastructure performance came out to rank 72nd out of 141 countries with a score of 68, lower than the east asia and pacific average.6 further, the world bank’s logistic performance index global rankings 2018, shows that indonesia’s infrastructure performance lags behind other countries in the region such as singapore, thailand, vietnam and malaysia as well as other developing countries.7 in 2015, president joko widodo reiterated the goi’s resolve for infrastructure development by issuing presidential regulation number 38 year 20158 (“pr 38/2015”) replacing past regulations, considering that slow progress indicated a need for new strategy to increase investment attractiveness and assure private participation would not be impeded.9 this need to increase attractiveness is to meet infrastructure targets in presidential regulation number 2 year 2015 on mtndp for years 2015 2019 (“pr 2/2015”), which also states that national development must follow the mtndp document drawn up 5 presidential regulation number 67 year 2005 on cooperation between government and business entities in infrastructure provision, (2005), https://peraturan.bpk.go.id/home/details/42594/perpres-no-67-tahun-2005. 6 klaus schwab, the global competitiveness report 2019. insight report (2019). 7 the world bank, logistics performance index (2018), https://lpi.worldbank.org/international/global. 8 presidential regulation number 38 year 2015 on cooperation between government and business entities in infrastructure provision (state gazette of indonesia year 2015 no. 62), (2015), https://peraturan.bpk.go.id/home/details/41764/perpres-no-38-tahun-2015. 9 id. http://journal.unnes.ac.id/sju/index.php/jils 344 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils by the ministry of national development planning/national development planning agency (“bappenas”).10 an important development in pr 38/2015 is that the ppp scheme can be used to carry out the development of a project that is a combination of two or more types of the infrastructures and encouraging the development of a wide array of projects, pursuant to its article 5(2) of pr 38/2015, allowing private sector partnership in the development of economic and social infrastructure for 19 types of projects.11 comparatively, in the previous regulations, only 8 types of infrastructure projects were available for the ppp scheme.12 a key significant development under pr 38/2015 is regarding the schemes for the return on investment (“roi”) for the implementing business entity (“ibe”) in providing infrastructure via availability payment (“ap”). ap did not previously in past regulations as an roi option, rather only tariffs. this writing is focused on the implementation of ap in the use of ppp scheme projects. it must be noted that the ap roi scheme is a new concept where a periodic payment is made to the ibe for providing infrastructure services according to the quality and/or criteria as specified in the partnership agreement (“pa”) after the infrastructure has been built and declared ready to operate, and fulfils the service indicators as set out in the pa.13 the technical mechanism for the payment of the ap for the infrastructure service provided by the ibe 10 presidential regulation number 2 year 2015 on medium-term national development plan for years 2015-2019 (state gazette of indonesia year 2015 no. 3), (2015), https://peraturan.bpk.go.id/home/details/41718/perpres-no2-tahun-2015. 11 presidential regulation number 38 year 2015 on cooperation between government and business entities in infrastructure provision (state gazette of indonesia year 2015 no. 62), supra note. 12 presidential regulation number 67 year 2005 on cooperation between government and business entities in infrastructure provision, supra note. 13 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 345 available online at http://journal.unnes.ac.id/sju/index.php/jils is regulated by the implementing regulation of pr 38/2015, specifically under the minister of finance regulation number 260 year 2016 on procedures for availability payment in public-private partnership projects in the provision of infrastructure (“mfr 260/2016”).14 mfr 260/2016 stipulates that the ap scheme man be used if the ppp pa at least contains provisions concerning:15 a. objective and measurable output specifications and performance indicators for services; b. the formula to calculate the ap (agreed formula) which is the basis for calculating the gca’s obligations to the ibe; and c. an effective monitoring system against the performance indicators. the first ppp project in indonesia to make use of the ap roi scheme is the palapa ring western package infrastructure project. the project involved the ministry of communication and informatics of the republic of indonesia (“kominfo”) as the government contracting agency (gca) and pt palapa ring barat (“prb”) as the implementing business entity (ibe). a key principle of ppp projects is management of control and risk16 and how risk is allocated to be shared by/among the respective parties of a ppp infrastructure project.17 given the financial cost, value and the strategic importance of the palapa ring western package project; it is important that aspects of ppp projects are sound in order to ensure continued infrastructure service to the public. as this is the first project to apply 14 minister of finance regulation number 260 year 2016 on procedures for availability payment in public-private partnership projects in the provision of infrastructure (state gazette of indonesia year 2017 no. 11), (2016). 15 id 16 presidential regulation number 38 year 2015 on cooperation between government and business entities in infrastructure provision (state gazette of indonesia year 2015 no. 62), supra note. 17 id. http://journal.unnes.ac.id/sju/index.php/jils 346 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils the ap scheme, it can be considered as the pilot project for future uses of ap in ppp. under mfr 260/2016 the ppp pa may be drawn up together by the gca and ibe to regulate a system of incentives and penalties for the gca and/or the ibe, in order to maintain the level of service quality provided by the ibe to service users.18 thus, a wide array of possibilities can be regulated within the pa on what system would apply in a ppp ap scheme. therefore, in light the project economic and strategic value, the ap scheme and risks involved, it must be considered then as to whether ibe’s have a responsibility or obligation in the occurrence of damage caused by a third party that carry contingent cost liabilities outside the ap amount. it must also be explored as to whether, in response to the occurrence of damage caused by a third party that interrupt or shuts down infrastructure service, the gca have the right to penalize the ap amount to the ibe. the matter of ibe obligation of contingent cost liabilities in the occurrence of damage caused by a third party and gca right to penalize ap amount to ibe is a current and relevant matter, especially apparent in the case of the palapa ring western package due to recent events in 2021. on january 21, 2021, the palapa ring western package tanjung bemban–tarempa fiber optic cable broke because a foreign ship in the waters carelessly anchored due to experiencing bad weather conditions and engine failure.19 soon after, on february 2-3, 18 minister of finance regulation number 260 year 2016 on procedures for availability payment in public-private partnership projects in the provision of infrastructure (state gazette of indonesia year 2017 no. 11), (2016), https://peraturan.bpk.go.id/home/details/121416/pmk-no260pmk082016. 19 francisca christy rosana & kodrat setiawan, palapa ring barat jelaskan penyebab blackout di anambas dan natuna, february 11, 2021, https://bisnis.tempo.co/read/1432005/palapa-ring-barat-jelaskan-penyebabblackout-di-anambas-dan-natuna. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 347 available online at http://journal.unnes.ac.id/sju/index.php/jils 2021, the anambas islands regency and natuna regency lost all connection due to a double-fo-cut (double fiber optic cable cut), with initially the tanjung bemban–anambas cable first experiencing problems, then shortly after the singkawang–natuna cable breaking due to third party ground excavation on land in ranai, natuna. thus, the cables to and from the two regencies were disconnected from both sides.20 the aforementioned issues give rise to the following research questions that will discuss who is obligated for contingent cost liabilities outside of the determined availability payment amount in the partnership agreement in the occurrence of damage caused by a third party which interrupts or disrupts infrastructure service availability. further, it will also discuss whether the gca have the right to penalize availability payment amount to the ibe in the occurrence of damage caused by a third party which interrupts or disrupts infrastructure service availability. keeping in mind that there is a huge potential for a wider application of the ap roi scheme in future infrastructure development through ppp in indonesia, this writing will identify the key legal determinants of the rights and responsibilities of the gca and ibe of the palapa ring western package project in implementing ap. the examination and identification of these legal factors is expected to provide the right direction for better improvement in future ppp ap scheme implementation. the specific objective is to explain whether the ibe has obligation for contingent cost liabilities outside of the determined ap amount in the pa in the occurrence of damage caused by a third party which interrupts or disrupts infrastructure service availability. this writing also intends to elaborate whether the gca has the right to 20 id. http://journal.unnes.ac.id/sju/index.php/jils 348 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils penalize availability payment amount to the ibe in the occurrence of damage caused by a third party which interrupts or disrupts infrastructure service availability. the first part will cover the relationship of risk and obligation in general. the second part will detail the risks in ppp transactions in specific to the palapa ring western package and the allocation of such risks between the gca and ibe. the third part will address the obligations of the ibe in relation to contingent risks by third parties. the fourth section will cover availability payment schemes in ppps. the fifth section will discuss the contractual rights of the gca. in continuing, the sixth part will detail the ap in the palapa ring western package pa. in conclusion, this writing will provide the findings of the research. relationship of risk & obligation many countries have found that ppp schemes have become an inevitable part in realizing projects and such schemes provide several advantages for public and private partners respectively.21 ppp schemes allow increased effectiveness for governments,22 private finance access, importing of management expertise23 or the making 21 rianne warsen et al., what makes public-private partnerships work? survey research into the outcomes and the quality of cooperation in ppps, 20 public management review (2018). 22 alexander pinz, nahid roudyani & julia thaler, public–private partnerships as instruments to achieve sustainability-related objectives: the state of the art and a research agenda, 20 public management review (2018). 23 derick w. brinkerhoff & jennifer m. brinkerhoff, public-private partnerships: perspectives on purposes, publicness, and good governance, 31 public administration and development (2011). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 349 available online at http://journal.unnes.ac.id/sju/index.php/jils use of cost-saving mechanisms.24 in return, private entities can either share or shift risks and gain opportunities to enter public projects they otherwise could not.25 nonetheless, the ppp scheme also have its drawbacks, such as that it might have more and a higher degree of risks.26 in indonesia, the palapa ring western package ppp infrastructure project is the first of its kind, as it made use of the ap roi scheme in its undertaking.27 the palapa ring western package is part of the larger infrastructure development plan for the palapa ring broadband project with the purpose to provide an equitable distribution and access to information technology services for national security as well as spurring economic growth through digital connectivity.28 a key principle of ppp projects is management of control and risk29 and how risk is allocated to be shared by/among the respective parties of a ppp infrastructure project.30 given that risks in a ppp infrastructure project are to be shared by the parties of the 24 young hoon kwak, yingyi chih & c. william ibbs, towards a comprehensive understanding of public private partnerships for infrastructure development, 51 california management review (2009). 25 brinkerhoff and brinkerhoff, supra note. 26 darrin grimsey & mervyn k. lewis, evaluating the risks of public private partnerships for infrastructure projects, 20 international journal of project management (2002). 27 maman suhendra, the key success factors of availability payment scheme implementation in the palapa ring western package ppp project, 9 international journal of scientific and technology research (2020). 28 vina fadhrotul mukaromah, perjalanan palapa ring, dicetuskan sejak 2005 hingga diresmikan jokowi (2019), https://www.kompas.com/tren/read/2019/10/14/191700465/perjalanan-palaparing-dicetuskan-sejak-2005-hingga-diresmikan-jokowi?page=all. 29 presidential regulation number 38 year 2015 on cooperation between government and business entities in infrastructure provision (state gazette of indonesia year 2015 no. 62), supra note. 30 id. http://journal.unnes.ac.id/sju/index.php/jils 350 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils development project through the partnership agreement, therefore there are also obligations that are based on those risks.31 under the palapa ring western package pa, risk is not explicitly defined by its own provision. however, risk is categorized/classified and allocated between the parties involved in the ppp transaction under provisions on monitoring and reporting requirements.32 risk is defined as ‘the uncertainty of a result, happening, or loss; the chance of injury, damage, or loss; esp, the existence and extent of the possibility of harm’ or ‘liability for injury, damage, or loss if it occurs’. 33 in further exploring the second general legal definition of risk, there is a relation between such existent risk with liability if in the case such harm takes place causing in effect damage or loss. on the other hand, obligation is one such that is inseparable from rights, and in fact a burden given by law to legal subjects. mertokusumo explains that rights give enjoyment and flexibility to individuals in carrying them out, while obligations restricts and burdens, so rights stand out as the active aspect of legal relationships, also they are not a collection of rules or principles, rather a balance of power in the form of individual rights for one person which are reflected as obligations to another.34 therefore, if there are rights of one party, there are obligations for another; if there are obligations for one party, there are rights of another. a general legal definition of obligation in black’s law dictionary defines obligation as such: 1. a legal or moral duty to do or not do something. the word has many wide and varied meanings. it may refer to anything that a 31 timothy irwin & tanya mokdad, managing contingent liabilities in public-private partnerships (2010). 32 palapa ring western package agreement 284/m.kominfo/hk.03.02/02/2016, 002/prb/pd-dir/ii/2016. 33 bryan a garner, black’s law dictionary 10th edition (2014). 34 sudikno mertokusumo, mengenal hukum: suatu pengantar (4 ed. 2002). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 351 available online at http://journal.unnes.ac.id/sju/index.php/jils person is bound to do or forbear from doing, whether the duty is imposed by law, contract, promise, social relations, courtesy, kindness, or morality. 2. a formal, binding agreement or acknowledgment of a liability to pay a certain amount or to do a certain thing for a particular person or set of persons; esp., a duty arising by contract.35 in this sense, when an obligation of contingent liability arises out of risk, such obligation is concurrently a legal responsibility towards another party as it is a right to be fulfilled or performed. recalling the first definition of risk shortly above, there is an aspect of uncertainty and/or chance for injury, loss or harm, and as in the second definition of risk previously laid out, risk is related, by definition, to liability.36 therefore, it is a natural conclusion to surmise from risk that, in an instance of injury, harm, or loss that may possibly take place, arises an uncertain liability — a liability that is otherwise contingent. black’s law dictionary defines contingent as that which is ‘possible; uncertain; unpredictable’37 and ‘dependent on something else; conditional’.38 the legal definition of contingent liability is set out as ‘a liability that will occur only if a specific event happens; a liability that depends on the occurrence of a future and uncertain event’.39 contingent being the operative word leads to the understanding that such liability will only take place in the instance that a possible uncertain risk materializes. further, liability is legally defined to be understood as ‘the quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment’.40 additionally, in the 35 garner, supra note. 36 id. 37 id. 38 id. 39 id. 40 id. http://journal.unnes.ac.id/sju/index.php/jils 352 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils context of fault, a legal definition of liability characterizes it ‘as financial or pecuniary obligation’.41 therefore, through such analysis of legal terms, we can come to such a conclusion to which that an obligation may occur by contingent liability which arises out of risk. moreover, if, in an event that, there is an element of fault, such obligation would be of a financial liability towards another party. risks in ppp scheme while many infrastructure ppp infrastructure projects have been successful, many also have failed and there are a variety of risk related to them, including, but not limited to, financial and political risks, as well as a possible risk of a public rejection in the life cycle of a ppp project.42 furthermore, legal, political and cultural barriers frequently obstruct the implementation of ppp initiatives.43 risk identification, risk appraisal and risk allocation have been the focus of research on the risks associated with ppp projects, as well as the development of methodologies for identifying elements connected to the success or failure of projects created using ppp schemes.44 some studies have sought to identify risk factors associated to a specific ppp project or country in order to identify these risks, and have classified them, in 41 id. 42 patrick x.w. zou, shouqing wang & dongping fang, a life-cycle risk management framework for ppp infrastructure projects, 13 journal of financial management of property and construction (2008). 43 ahmed m. abdel aziz, successful delivery of public-private partnerships for infrastructure development, 133 journal of construction engineering and management (2007). 44 caiyun cui et al., review of studies on the public–private partnerships (ppp) for infrastructure projects, 36 international journal of project management (2018). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 353 available online at http://journal.unnes.ac.id/sju/index.php/jils general, as either being shared equally between the two parties or being allocated in a larger part to the public or private partners.45 general identification and classification of risks in ppp schemes have been done in the past.46 hwang et al. identified 42 critical risk variables affecting ppp projects in singapore, which were allocated to both the public and private sectors.47 tang and shen associated 18 risk factors relating to stakeholders’ needs in a hong kong ppp project.48 other studies have assigned risk factors into several categories to make practical analysis easier. force majeure risks, according to aziz and shen, are a risk category that necessities careful management because they might translate to massive losses especially for ppp private parties.49 in further detail, ameyaw and chan organized 8 categories in their study, including political and regulatory risks, operational risks, market/revenue risks, financial risks, relationship 45 sajani jayasuriya, guomin zhang & rebecca jing yang, challenges in public private partnerships in construction industry: a review and further research directions, 9 built environment project and asset management (2019). 46 yan wang et al., exploring the risk factors of infrastructure ppp projects for sustainable delivery: a social network perspective, 12 sustainability (switzerland) (2020). 47 bon gang hwang, xianbo zhao & mindy jiang shu gay, public private partnership projects in singapore: factors, critical risks and preferred risk allocation from the perspective of contractors, 31 international journal of project management (2013). 48 li yaning tang & qiping shen, factors affecting effectiveness and efficiency of analyzing stakeholders’ needs at the briefing stage of public private partnership projects, 31 international journal of project management (2013). 49 ahmed abdel aziz & tai ling shen, management of force majeure risks in canadian ppp transportation projects, in construction research congress 2016: old and new construction technologies converge in historic san juan proceedings of the 2016 construction research congress, crc 2016 (2016). http://journal.unnes.ac.id/sju/index.php/jils 354 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils risks, project and private party selection, social risks and third-party risks.50 the focus will be on the latter category of third-party risk as highlighted in recent events of damages and complete loss of palapa ring western package infrastructure availability as result of thirdparty action. in specific to the palapa ring western package ppp project, such occurrences are third-party risks that gives rise to liabilities for contingent costs of repair or restoration of said infrastructure availability which constitutes as contractual obligation of prb as the ibe. keeping in mind that, as previously iterated, availability payments are made on the condition that the infrastructure is available to the public, the ibe must be wary of that obligation to preserve revenue and mitigate financial losses. in any case of the application of ppp schemes, the public party, or rather the government, would typically bear some of the risks in the undertaking of the project — although such risks would not amount to the extent that it would have to bear it were to employ conventional public finance.51 i. primary risks in palapa ring western package partnership agreement in all ppp projects, as it is in any other infrastructure projects by other means, risk is inherently present, and especially apparent in ppp 50 ernest effah ameyaw & albert p.c. chan, identifying public-private partnership (ppp) risks in managing water supply projects in ghana, 11 journal of facilities management (2013). 51 irwin and mokdad, supra note 31. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 355 available online at http://journal.unnes.ac.id/sju/index.php/jils infrastructure projects, the common main types of risks include namely:52 1) construction risk: mainly delays in construction 2) technology risk: arising when the technology is not a proven one 3) sponsor risk: ability of the sponsor to deliver the project. 4) environmental risk 5) commercial risk: a lower-than-expected demand for services 6) produced by the project 7) operating risk: operational inefficiency leading to higher operating 8) costs 9) legal risk: changes in law 10) regulatory risk: changes in regulatory regimes 11) political risk: changes in government policy 12) force majeure: risks due to unpredictable natural and man-made events such as earthquake, flood, civil war, etc. in indonesia, the application of the ppp scheme for the provision of infrastructure development projects which are instigated by the government to be offered for partnership with private sector entities must be accompanied by a preliminary study at the stage of identification and appointment of ppp.53 such preliminary study must at the minimal contain ppp form plan; project financing scheme plans and sources of funds; and a cooperation offer plan that includes a schedule, process and method of assessment.54 it is within said preliminary study document that an initial identification of risks is conducted. before being publicly offered for bid proposals from 52 abdul quium, public-private partnerships in infrastructure development: a primer, united nations economic and social commission for asia and the pacific (2008). 53 presidential regulation number 38 year 2015 on cooperation between government and business entities in infrastructure provision (state gazette of indonesia year 2015 no. 62), supra note. 54 id. http://journal.unnes.ac.id/sju/index.php/jils 356 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils private sector parties, a feasibility study on the infrastructure which will be cooperated must be conducted must contain among other things the identification of risks and mitigation recommendations, as well as the allocation of those risks.55 in the process of the preparation stage for the palapa ring western package ppp infrastructure project, an interdepartmental report56 based on the feasibility study of the project was presented before the relevant stakeholders involved in the project on the side of the public party or rather government related parties, before selecting a private sector partner from the bidders for the project.57 the interdepartmental stakeholders from the government includes kominfo as the gca and composer of the report,58 the ministry of finance of the republic of indonesia as the government ministry which organizes government affairs in finance and state assets,59 bappenas as the government ministry which carries out government affairs in the field of national development planning,60 pt sarana multi infrastruktur (persero) as mandated by the ministry of finance to carry out project preparation facilities and transaction assistance to gca,61 and pt penjaminan infrastruktur indonesia (persero) as the 55 id. 56 id. 57 ministry of communication and informatics of the republic of indonesia, palapa ring report interdepartmental presentation (2015). 58 id. 59 presidential regulation number 38 year 2015 on cooperation between government and business entities in infrastructure provision (state gazette of indonesia year 2015 no. 62), supra note. 60 id. 61 ministry of finance of the republic of indonesia, proyek kpbu palapa ring paket barat mencapai tahap perolehan pembiayaan (financial close) (2016), https://www.djppr.kemenkeu.go.id/page/load/1622. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 357 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesia infrastructure guarantee fund.62 referring to the kominfo interdepartmental presentation on the feasibility study report, 7 primary risks are identified for the palapa ring western package ppp infrastructure development project, with 5 of those primary risks being common main types of identifiable risks (see table 1 below).63 table 1 common main types of risks vs. primary risks in palapa ring western package pa no common main types of risks primary risks in palapa ring western package pa not primary risks in palapa ring western package pa 1 construction ✓ 2 technology ✕ 3 sponsor ✕ 4 environmental ✕ 5 commercial ✕ 6 operational ✓ 7 legal ✓ 8 regulatory ✓ 9 political ✕ 10 force majeure ✓ source: ministry of communication and informatics, palapa ring report interdepartmental presentation (2015) furthermore, two of the primary risks in the palapa ring western package pa are not common main types of identifiable risks, namely, risk of government action/inaction and risk of the payment of availability payment. 62 sholahuddin al ayyubi, pii beri penjaminan proyek palapa ring (2017), https://teknologi.bisnis.com/read/20170331/105/641529/pii-beri-penjaminanproyek-palapa-ring. 63 ministry of communication and informatics of the republic of indonesia, supra note 57. http://journal.unnes.ac.id/sju/index.php/jils 358 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils ii. contractual allocation of risks between gca and ibe risk allocation is a key feature of public-private partnerships for infrastructure development projects globally. in a ppp scheme for the provision of infrastructure, optimal risk allocation is one of the key determinants for a project’s value for money.64 as previously discussed, in ppp schemes allow the transfer of risks from a public party to a private party, which relieves it of the otherwise burdensome costs of risks that it may be unable to manage — such as construction cost overruns, delays in construction and the long-term maintenance of the asset.65 project risk allocation in ppps are more or less straightforward and direct with the concept that risks should be allocated accordingly to the party that has the best ability to manage such risks.66 simply put, the party that has a better suited grasp of the risk, the ability to control the possibility of the risk occurring and/or mitigate the impact of the risk, should be the party responsible to manage the risk.67 therefore, allocating risk on the basis of the above principles is assumed to result in optimal risk allocation. based on that understanding, in case of ppps, comprehensive legal frameworks for the purpose of ensuring proper risk taking and allocation are common to be found in several national jurisdictions, such as australia, colombia, greece, ireland, portugal, south africa and the united kingdom.68 in light of the potential costs to be incurred 64 jayasuriya, zhang, and jing yang, supra note 45. 65 id. 66 pauline hovy, risk allocation in public-private partnerships: maximizing value for money, international institute for sustainable development (2015). 67 id. 68 cebotari, supra note. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 359 available online at http://journal.unnes.ac.id/sju/index.php/jils related to ppps for infrastructure development and that the transfer of risks may influence the balance sheet of a government, risk allocation under ppp schemes are often reviewed in legislation in which it is common to identify within such frameworks that projects must pass a cost-benefit analysis, provide value for money and include a stringent risk assessment in order for approval to be given or otherwise unacceptable.69 on the other hand, the united nations commission on international trade law (uncitral), in their uncitral legislative guide on privately financed infrastructure projects published in 2001, have previously recommended to not include risk allocation into a ppp legislation, but rather to have it be left to be determined within contracts, as not all ppp projects are same, and each may require a different set of risk allocation. the uncitral’s recommendation is worded as such that ‘no unnecessary statutory or regulatory limitations should be placed upon the contracting authority’s ability to agree on an allocation of risks that is suited to the needs of the project’.70 under pr 38/2015, ppp scheme infrastructure projects must initially go through a thorough planning process which includes identification and determination, budgeting and preparation.71 identification includes the analysis of benefit and social cost, analysis of value for money and a preliminary study which must contain the ppp form plan, project financing scheme plan and funding sources and the partnership bidding plan (including schedule, process and 69 id. 70 josé angelo estrella faria, the uncitral legislative guide on privately financed infrastructure projects, the journal of world investment & trade (2012). 71 presidential regulation number 38 year 2015 on cooperation between government and business entities in infrastructure provision (state gazette of indonesia year 2015 no. 62), supra note. http://journal.unnes.ac.id/sju/index.php/jils 360 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils assessment method).72 if the project then passes budgeting, it must go through preparation which requires a feasibility study, as previously mentioned in brief.73 within the feasibility study required in the preparation process, there must be concluding results on sources of ppp financing; identification of contractual, regulatory and institutional frameworks; draft technical aspects of ppp; proposed required government support and guarantee; identification of risks and mitigation recommendations and the allocation of those risks; and the form of return on investment for the ibe.74 given as such, we can observe that indonesia’s ppp regulation reflects the framework of the first approach in its rigorous preparation process. yet, moreover, pr 38/2015 also reflects the framework of the second approach as it leaves the determination of rights and obligations, including the allocation of risk, to be contained in the ppp contract between the gca and the ibe.75 the palapa ring western package pa details the various risks allocated between kominfo as the gca and prb as the ibe. from the pa, the allocation of risk can be identified into 3 categories, namely, risk allocated to gca; risk allocated to ibe; and risk allocated jointly. for ease and practicality, the primary risks identified in the palapa ring interdepartmental presentation that had been previously discussed is visually shown here below in table 2 according to how each party is allocated risk. 72 id. 73 id. 74 id. 75 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 361 available online at http://journal.unnes.ac.id/sju/index.php/jils table 2 primary risks allocated to gca, ibe & jointly no primary risk contract article kominfo (gca) prb (ibe) joint 1 change of law article 18 ✓ 2 government action/inaction article 17 ✓ 3 payment of ap article 11 appendix 11 ✓ 4 force majeure article 16 ✓ 5 construction article 6.4 ✓ ✓ 6 permits and licenses article 4.4 appendix 4 ✓ ✓ 7 operation and maintenance article 8 ✓ source: palapa ring western package partnership agreement contract (kominfo pt. prb) the palapa ring western package pa76 and the kominfo interdepartmental presentation77 further elaborates the categories of risks and the specific risks as well as how they are allocated as visually shown for operational risks here below in table 3. table 3 detailed elaboration palapa ring western package gcaibe risk allocation risk risk allocation operational risk gca ibe joint 1 availability of facility ✓ 2 bad or unavailable service ✓ 3 industrial action ✓ 4 project control and monitoring failure ✓ ✓ 5 increase in operational and maintenance costs ✓ 6 life cycle cost estimation error ✓ 7 traffic accidents or safety issues ✓ 76 id. 77 ministry of communication and informatics of the republic of indonesia, supra note 57. http://journal.unnes.ac.id/sju/index.php/jils 362 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils contractual obligation of ibe contracts are a legal institution that is fundamental in almost a majority of business relationships,78 including the trade of goods and services, which of course includes a transaction the likes of the palapa ring western package ppp infrastructure development project. a definition of contract is ‘an enforceable set of mutual obligations for which the law provides a remedy, recognizes a duty, or provides for court enforcement’.79 black’s law dictionary provides a general legal definition of contract as ‘an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law’,80 and another alternative looser definition as ‘an enforceable agreement between two or more parties to do or not to do a thing or set of things’.81 a contract may be a promise or set of promises that is court enforceable.82 contracts may also be regarded as ‘a transaction involving two or more individuals whereby each becomes obligated to the other, with reciprocal rights to demand performance of what is promised by each respectively’.83 william anson writes that a ‘contract is a legally binding agreement made between two or more persons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others’.84 from these understandings, several characteristics can be drawn that in a contract there are several elements, namely, promise; 78 f. william mccarty & john w. bagby, the legal environment of business: study guide (2011). 79 id. 80 garner, supra note. 81 id. 82 j. david reitzel et al., contemporary business law and the legal environment: principles and cases (5th ed. 1994). 83 steven h. gifis, law dictionary (7th ed. 2016). 84 paul richards, law of contract (4th ed. 1999). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 363 available online at http://journal.unnes.ac.id/sju/index.php/jils agreement; reciprocal/mutual obligations; and that it is legally enforceable.85 further, one of the main premises reflected in the law of contracts is that parties should have a broad freedom to contract as they like to make economic decisions subject only to a few limitations imposed by law to prevent fraud and so on.86 such premise of broad freedom is reflected in the structure of the terms that the parties to the palapa ring western package ppp infrastructure development project are able to negotiate as per the mechanisms given by the pr 38/201587 and mfr 260/2016.88 given that through a contract arises rights and mutual obligations, therefore there must be performance of the contract. under indonesian law, such is known as betaling according to the civil code.89 the contractual relationship will be ended once all obligations of the parties are performed. i. general obligations of ibe under the palapa ring western package pa, 7 general obligations of the ibe for the project are listed, pursuant to the kominfo interdepartmental presentation, as such:90 1. financing the project 2. design, build, install project system 85 agus sardjono et al., pengantar hukum dagang (2018). 86 j. david reitzel et al., supra note 82. 87 presidential regulation number 38 year 2015 on cooperation between government and business entities in infrastructure provision (state gazette of indonesia year 2015 no. 62), supra note. 88 minister of finance regulation number 260 year 2016 on procedures for availability payment in public-private partnership projects in the provision of infrastructure (state gazette of indonesia year 2017 no. 11), supra note. 89 indonesian civil code, article 1381. 90 ministry of communication and informatics of the republic of indonesia, supra note. http://journal.unnes.ac.id/sju/index.php/jils 364 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils 3. operate and maintain the project 4. provide services to customers, if requested by bp3ti 5. acquiring project land 6. obtain permits and approvals (with reasonable facilitation by bp3ti) 7. transfer the project to bp3ti at the end of the cooperation period bp3ti as referred here is balai penyedia dan pengelola pembiayaan telekomunikasi dan informatika (“bakti”) under kominfo as the institution under the ministry which coordinates the palapa ring broadband project. therefore, as such obligations are burdened upon prb as the ibe, kominfo as the gca have rights to have these obligations to be performed under the pa. in specific context of the availability payment roi scheme used in this project, prb must fulfil its obligations of operation and maintenance91 of the project. otherwise risking their right to receiving revenue via ap from kominfo, which in turn is kominfo’s obligation.92 from the above list of the general obligations of the ibe in this project, the obligation to operate and maintain is one which has close ties close to the risks in table 3 which may arise due to third-party damage. the ibe’s performance of its obligations for operation and maintenance and is dependent on the service indicators as set out within the pa. these service indicators are defined as the operational parameters intended to measure the performance of the implementing business entity.93 by this measurement, the ap will be adjusted as such according to the ap payment terms. recalling the listed operational risks in table 3, prb as the ibe must take caution for the availability of facility, bad or unavailable service, industrial 91 palapa ring western package agreement 284/m.kominfo/hk.03.02/02/2016, 002/prb/pd-dir/ii/2016. 92 id. 93 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 365 available online at http://journal.unnes.ac.id/sju/index.php/jils action, project control and monitoring failure, increase in operational and maintenance costs, life cycle cost estimation error, traffic accidents or safety issues, in order to meet the service indicators. ii. obligation for contingent cost liabilities outside of ap due to damage by third party as has been covered previously, in the allocation of risks in ppp infrastructure projects to the private sector, it is a key matter to comprehend the extent to which a private sector partner would be willing to take on risk.94 the private sector capability to accept risk is limited by two main factors, namely, its structure and organization and the extent where risks—both ‘regular’ and ‘extraordinary’—are accepted in regular markets.95 all other risks are regular in this transaction for infrastructure development via ppp scheme, while only force majeure being an extraordinary risk as something outside the control of either party to the contract.96 in a public private partnerships, the private sector partner is typically structured as a specially created project vehicle or a special purpose vehicle (spv) that has contractual agreements with a public agency, from which it receives revenue, and with subcontractors, from which it incurs expenses.97 in the context of the palapa ring western package infrastructure development project, any potential damage by a third-party is included as a risk under the provisions to 94 hovy, supra note. 95 id. 96 palapa ring western package agreement 284/m.kominfo/hk.03.02/02/2016, 002/prb/pd-dir/ii/2016. 97 id. http://journal.unnes.ac.id/sju/index.php/jils 366 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils perform operational and maintenance obligations in order to fulfil service indicators for ap payment. according to statement from bp3ti of kominfo, the recovery/repair of a damage that arises due to the actions of a third party that causes the disconnection/disruption of the availability of service of the palapa ring western package remain the obligation of prb as ibe, but bp3ti kominfo also synergizes with the ibe to reduce the damage caused by the third party.98 therefore, any contingent cost liabilities would be harbored by prb as the ibe as part of its fulfilment of operational and maintenance obligations to kominfo as the gca, from which it receives revenues. as mentioned above, in a ppp infrastructure project, the ibe as an spv not only has a contractual arrangement with the public agency/gca, but also subcontractors in the undertaking and commercial operation of the infrastructure project. in the palapa ring western package, prb as the ibe deploys a subcontractor to fulfil its obligations for operation and maintenance. during the interview for this research, syarif lumintarjo, president director of prb, explains that prb as the ibe of the palapa ring western project retains a subcontractor, pt. ketrosden triasmitra, as a vendor for the maintenance and repairs of the palapa ring western project.99therefore, such contingent cost liabilities outside of the ap amount which may arise due to damage caused by third-parties does not result in a direct reduction in ap revenue, as payment to the subcontractor, pt ketrosden triasmitra, is already accounted for as part of regular operational costs.100 98 andrew nathaniel, reply to request for information by directorate of infrastructure, bp3ti, ministry of communication & informatics of the republic of indonesia (2021). 99 andrew nathaniel, interview of pt palapa ring barat president director syarif lumintarjo (2021). 100 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 367 available online at http://journal.unnes.ac.id/sju/index.php/jils availability payment roi scheme in public private partnerships in public private partnerships, the private party/implementing business entity undertakes the provision of a project with an expected return on investment (roi) that they had have committed to the project. black’s law dictionary provides a definition of roi as ‘yield or profit’101 or also ‘revenue that represents the repayment of cost or capital and thus is not taxable as income’.102 one mechanism of roi in ppp is the use of availability payments. one practical glossary legal definition for availability payment is that it is as follows:103 a fee structure often used in public private partnerships in which the public agency makes payments under the relevant agreement to the private sector party once the project or facility is made available for use (subject to compliance with the agreed performance criteria and standards). the private party partner would typically design, build and finance the construction of the project in public private partnership schemes implementing the availability payment roi.104 following completion of construction, the private party entity will operate and maintain the infrastructure for the duration of the project service contract, which is normally 30 years but could be longer in some circumstances.105 in return, the government contracting party may 101 garner, supra note. 102 id. 103 availability payment, , thomson reuters , https://uk.practicallaw.thomsonreuters.com/0-5181769?transitiontype=default&contextdata=(sc.default). 104 availability payments in public private partnerships: issues and implications, (2018). 105 id. http://journal.unnes.ac.id/sju/index.php/jils 368 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils provide incentive payments for achieving milestones and/or completion during the period of construction, and then later pay out regular availability payments to the private party partner once the infrastructure is in commercial operation.106 such availability payments may be either pre-determined or be made based of a predetermined formula so long as they meet contractually specified performance standards.107 i. performance based contracts it should be clearly specified within a ppp contract of what is expected from the private party in relation to the quality and quantity of the infrastructure provision undertaken and the services to be provided.108 typically, the specifics of the performance indicators and targets are inserted into an appendix to the main ppp agreement.109 in public private partnerships, there are several types of agreements which include concession agreements, leases and design-buildfinance-operate-maintain agreements among others.110 the specification of performance in any case possible in terms of required outputs (such as quality), rather in contrasting to inputs (such as design and materials) is a key feature of a ppp. as such, it thus enables the private party partner to responsively innovate to meet any 106 elisabetta iossa, giancarlo spagnolo & mercedes vellez, the risks and tricks in public-private partnerships, ssrn electronic journal (2014). 107 payment mechanism, , ppp knowledge lab , https://pppknowledgelab.org/guide/sections/63-payment-mechanism. 108 junxiao liu et al., performance measurement framework in ppp projects, 6 international journal of business and social science (2015). 109 payment mechanism, supra note. 110 marco percoco, infrastructure investment and growth in developing countries: does the type of contract matter?, 4 journal of infrastructure development (2012). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 369 available online at http://journal.unnes.ac.id/sju/index.php/jils requirements.111 the performance-based nature of ppp schemes also incentivizes the private party to focus on how it will produce measurable outputs in the long-term course and count in key interdependent factors between design, construction, operation, maintenance and performance of the project.112 a ppp contract should set out clear performance targets or output requirements, how performance will be monitored and consequences for failure to reach the required performance targets, clearly specified and enforceable.113 such clear performance targets or output requirements should be specific, measurable, achievable, realistic and timely.114 additionally, it should be detailed what information must be gathered, who gathers it, to whom it is reported and the frequency of it in order to monitor performance.115 monitoring itself may have roles for various stakeholders such as the government contracting party’s management team, the private party partner, external monitors, regulators and users.116 furthermore, clearly specified and enforceable consequences for failing to achieve the contractually determined performance standards could include specifying penalty payments, payment deductions for poor performance (or perhaps even bonuses for good performance) and formal warning procedures among else.117 in reference to mfr 260/2016, indonesia’s regulation sets out that ap is made if the pa at least contains provisions on objective and 111 edward farquharson, clemencia torres de mästle & e.r. yescombe, how to engage with the private sector in public-private partnerships in emerging markets (2011). 112 id. 113 payment mechanism, supra note. 114 farquharson, torres de mästle, and yescombe, supra note. 115 liu et al., supra note. 116 id. 117 iossa, spagnolo, and vellez, supra note. http://journal.unnes.ac.id/sju/index.php/jils 370 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils measurable output specifications and performance indicators, an agreed formula to base calculation of gca obligations to the ibe and an effective performance monitoring system.118 moreover, the pa may regulate incentives and penalties to the gca and ibe.119 ii. budget allocation & payment mechanism in recent years, countries have become more reliant on public private partnerships to finance infrastructure provision and operation.120 from time to time, the government may need to establish advance budgeting arrangements in order for the government contracting entity or other public bodies to satisfy financial commitments that span several budget cycles, such as long-term agreements to purchase the project’s output.121 such budgeting is a critical part of the planning and selection process in the preparatory stage of public private partnerships for infrastructure development. in indonesia, in the context of the ppp infrastructure project taking on the ap roi scheme, the gca must budget the for the payment for the infrastructure procurement that is undertaken by the ibe during the period of operational service as stipulated in the partnership agreement.122 in specific reference to availability payment budgeting for ppp infrastructure development projects, the gca must calculate for the 118 minister of finance regulation number 260 year 2016 on procedures for availability payment in public-private partnership projects in the provision of infrastructure (state gazette of indonesia year 2017 no. 11), supra note. 119 id. 120 paul l. posner, shin kue ryu & ann tkachenko, public-private partnerships: the relevance of budgeting, 9 oecd journal on budgeting (2009). 121 estrella faria, supra note. 122 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 371 available online at http://journal.unnes.ac.id/sju/index.php/jils capital cost of the project construction, the cost of the operation of the infrastructure and the profit for the implementing business entity.123 pursuant to mfr 260/2016, in order to prepare and implement the gca commitment to availability payment, the directorate general of financing and risk management through the directorate of government support management and infrastructure financing conducts three-party discussions with the directorate general of budget and the gca or officials who are delegated authority from gca to prepare a work and budget plan and the budget allocation of the availability payment funds.124 the design of a ppp contract should have a consistent connection between the output specifications (service indicators), allocation of risks and incentives and the payment mechanism.125 a pay-forperformance principle is used as the basis of the payment mechanism and such that is consistent with both the incentives which the public party would like to give to the private party partner and the risks it would take on itself.126 private party remuneration for having been willing to contact and undertake the provision of assets/services in a public private partnership is defined through a payment mechanism.127 payment adjustments made to reflect performance or risk factors are another key method to incentivize and allocate risk in a 123 id. 124 minister of finance regulation number 260 year 2016 on procedures for availability payment in public-private partnership projects in the provision of infrastructure (state gazette of indonesia year 2017 no. 11), supra note. 125 iossa, spagnolo, and vellez, supra note. 126 id. 127 epec, the guide to guidance how to prepare , procure and deliver ppp projects, european ppp expertise centre (2012). http://journal.unnes.ac.id/sju/index.php/jils 372 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils ppp contract.128 a basic overview of the basic elements of ppp payment mechanisms can include among others:129 1) ‘user charges—directly collected payments from service users by the private party 2) government payment—government payment to the private party for the provision of services or assets. such could take the form of: a. usage-based—for instance, shadow tolls or output-based subsidies b. based on availability—conditional on an asset’s or service’s availability on a certain quality c. upfront subsidies based on having met specific milestones 3) bonuses and penalties, or fines—payment deductions to the private party, or penalties/fines to be paid by the private party, due to failure to achieve certain specified outputs/standards; or oppositely, bonus payments given to the private party for meeting specified outputs.’ starting with a basic or ideal funding structure is a useful method in approaching the design of the payment mechanism for a government contracting party.130 ideally, the public party will want to pay in instalments to the private party partner a fixed amount for, and only for, each point of service that has been delivered and have met contractually required service quality standards.131 this would be in line with the key principle in ppp that any payment would only be made out only under the circumstance that service have been made available in accordance to the service standard that have been agreed 128 id. 129 iossa, spagnolo, and vellez, supra note. 130 cui et al., supra note. 131 epec, supra note. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 373 available online at http://journal.unnes.ac.id/sju/index.php/jils and should not be simply based on the private party partner’s real cost expenditures.132 under the provision of indonesia’s primary regulation on public private partnerships, pr 38/2015, there are three payment mechanisms for the private party to gain roi in the project transaction. the gca would determine the form of roi covering the closing of capital cost, operational cost and profit of the ibe133 between three payment mechanisms that are namely payment by user in the form of tariff, availability payment and other forms as long as they are not in conflict with the prevalent laws and regulations.134 in using the ap roi scheme, the payment scheme for the ibe will be paid starting from when the infrastructure is available for utilization or alternatively funds may also be allocated by the gca to return investment costs if the ibe also acts as the operator of the infrastructure facility.135 it is important to note that the ap roi scheme can be used only if the infrastructure project is complete and ready to be operated and the gca has the project has satisfied the applicable minimum service indicators agreed by the parties.136 132 payment mechanism, supra note. 133 presidential regulation number 38 year 2015 on cooperation between government and business entities in infrastructure provision (state gazette of indonesia year 2015 no. 62), supra note. 134 id. 135 id. 136 id. http://journal.unnes.ac.id/sju/index.php/jils 374 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils contractual rights of the gca in the palapa ring western package as have been mentioned before, any rights that is fitted into a contract attached to one party would also conversely result in the creation of obligations to be fulfilled by another party to said contract as to perform the agreement.137 in this case, kominfo as the government contracting agency in the palapa ring western package infrastructure development project have rights set out within the partnership agreement to ensure the provision of the public utility through the ppp scheme. the contractual rights that will be discussed in this section are those that are relevant to the focus of this chapter which is directly touching on the gca’s determination of availability payment to the ibe. in that sense, the gca’s right to monitor performance of service indicators and to receive and audit the ibe’s report would be key to calculate the ap payment amount. the management of ppp contracts are done differently from how traditional government contracts are managed.138 the purpose of ppp contract management is to ensure that the project being provisions would be delivered consistently and at the expected standard, referred to in the contract, and any payments or penalties would be made based on such that;139 137 david reitzel et al., supra note. 138 managing ppp contracts, , ppp knowledge lab , https://pppknowledgelab.org/guide/sections/73-managing-ppp-contracts. 139 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 375 available online at http://journal.unnes.ac.id/sju/index.php/jils 1) ‘efficiency expectations of the contract are achieved and the handback provision in the contract are met 2) contractual responsibilities and risk allocations are maintained in practice and the government's responsibilities and risks managed efficiently; 3) changes in the external environment—both risks and opportunities—are spotted and acted on effectively; and 4) the efficiency expectations of the contract are achieved and the handback provision in the contract are met.’ ppps are long-term and complicated, and contracts are inherently incomplete as the requirements and procedures for every single circumstance are not specified within the contract.140 consequently, ppp contract management must adapt and be flexible in terms of both the resources and capabilities available in order to satisfy the contract's long-term objectives.141 performance monitoring becomes a key aspect to ppp contract management as previously it had been set out that the ppp scheme is built upon performance both during construction and for the term of the contract operation. throughout the contract duration, the public party’s implementing agency is usually in charge of contract management with responsibility frequently given to a designated ppp contract manager, that serves as the primary contact point for any ppp-related issues of the government.142 therefore, in order to achieve the value for money promised by a ppp in its contract lifetime, the public party must ensure that the planned transfer of responsibilities 140 abdullahi ahmed umar, noor amila wan abdullah zawawi & abdul rashid abdul-aziz, exploratory factor analysis of skills requirement for ppp contract governance, 9 built environment project and asset management (2019). 141 id. 142 managing ppp contracts, supra note. http://journal.unnes.ac.id/sju/index.php/jils 376 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils and risks is implemented, monitored, recorded, reviewed and confirmed on a regular basis.143 throughout the lifetime of the contract, the public party’s contract manager needs to monitor the compliance and service performance (service indicators) of the private party to ensure if there should be any penalties or bonuses, monitor and ensure public party compliance in terms of contractual responsibilities, risk monitoring and mitigation and evaluating and allocating risks as contractually appropriate.144 the public party needs to ensure the private party achieves its obligations by monitoring outputs or service and performance standards which in general does not entail a detailed monitoring of the construction phase, which is the private party’s responsibility.145 thus, monitoring is done only against the performance/service indicators established in the contract. in the pa for the palapa ring western package ppp project, the contractual right of the gca to monitor performance is stipulated under article 13. the gca reserves the right to inspect, inspect, test and monitor the project and ibe's performance on the fulfilment of its obligations under this agreement from the effective date until the date of termination.146 under the pa, the main objectives of monitoring are to determine whether the project has been designed, constructed, tested for functionality; check the construction progress and project testing and commissioning; and determine whether the project has been operated and maintained all in accordance with the pa.147 143 umar, zawawi, and abdul-aziz, supra note. 144 iossa, spagnolo, and vellez, supra note. 145 herbert s. robinson & jon scott, service delivery and performance monitoring in pfi/ppp projects, 27 construction management and economics (2009). 146 palapa ring western package agreement 284/m.kominfo/hk.03.02/02/2016, 002/prb/pd-dir/ii/2016, p. 66. 147 id, p. 66. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 377 available online at http://journal.unnes.ac.id/sju/index.php/jils under the pa, the gca has the right to monitor performance of service indicators that are listed as key performance indicators (“kpis”) which is defined as the operational parameters intended to measure the performance of the ibe.148 this is conducted to ensure that the ibe provides reliable service which is based on the average of the actual achievements of the kpis in the last 3 (three) months of the project’s network services.149 to that end, the ibe must provide a mirror server of their network management system (“nms”) including software, to automatically generate performance reports on the fulfilment of kpis, to be placed at bakti’s office so that information received on the ibe’s nms server can be duplicated to bakti’s server.150 bakti kominfo has also confirmed and explained that all service supervision has been integrated with active devices that provide output in the form of an nms signal which is done through a dashboard which is monitored in real time.151 the gca also has the right to form a team for the purposes of management and monitoring that is responsible to monitor, supervise, coordinate and evaluate of the full implementation of the project at each stage under the pa terms, assess the ibe’s obligation compliance, receive and review all ibe submitted reports.152 moreover, the team will provide a report on the project status and ibe performance including an assessment of the project main risk factors 148 id, at. 66. 149 id, at. 13. 150 id. at. 66. 151 andrew nathaniel, transcript of ministry of communication and informatics of the republic of indonesia (bakti kominfo) response to inquiry (2021). 152 palapa ring western package agreement 284/m.kominfo/hk.03.02/02/2016, 002/prb/pd-dir/ii/2016, p. 68. http://journal.unnes.ac.id/sju/index.php/jils 378 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils and indicators to determine the extent to which these risk factors may affect the project and how it can be addressed.153 additionally, within a period of 30 days after the pa signing date, the gca and ibe also formed a joint monitoring team involving related agencies or bodies from the gca or other elements of the goi, including pt penjaminan infrastruktur indonesia, as the project guarantor.154 this joint monitoring team is responsible for monitoring the implementation of the project in order to identify and mitigate risks that will arise.155 further, the joint monitoring team has the same access rights to the project as the gca’s access rights as stipulated in the pa.156 thus, this allows an overall comprehensive monitoring of the project to further guaranteeing its progress, compliance, service and value-for-money. the direct ability to monitor via the mirrored nms also aids the gca to have the active awareness and determine whenever there may be a disruption or a disconnect of connectivity in real time which is important to have oversight on the infrastructure’s availability to the public. although the gca can monitor the kpis through the mirror server of the nms, they still have the right to receive reports from the ibe and to audit such reports. ibes must prepare, maintain, and keep at the ibe’s office their financial records and data in accordance with generally accepted accounting principles and applicable law.157 the gca or its authorized representative may audit ibe's books, records and data regarding all invoices to gca under the pa.158 this includes but is not limited to billing and payment of bills, deposited maintenance funds, indemnity claims, termination payments, 153 id, at. 69 154 id, at. 69. 155 id, at. 69. 156 id, at. 69. 157 id, at. 67. 158 id, at. 67. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 379 available online at http://journal.unnes.ac.id/sju/index.php/jils expense reimbursements and other expenses made to the gca in accordance with the pa.159 this right of the gca to conduct an audit upon these information provides the ability for the gca as the public party in the ppp to ensure the value-for-money of the infrastructure project and its continued reliable service to the public which it is means to serve. the ibe is required to submit to the gca a monthly report on the operation of the project within 15 days after the end of each month, including the level of service and compliance with the kpis (service indicators), shutdowns (if any) and other matters deemed relevant by the ibe. or requested by the gca regarding the project or pa.160 further, to meet the gca’s right to receive and audit reports, the ibe is also obligated to monitor and document the performance of the project and create and maintain accurate and up-to-date daily operation logs, inventory control reports, reports of failure to meet kpis, maintenance reports, downtime reports and other documents as required by gca from time to time.161 availability payment in the palapa ring western package ppp partnership agreement the service indicators as set out in the palapa ring western package ppp pa are used as kpis to calculate the payment formula to provide the availability payments to the ibe. under the ppp pa, service indictors are defined as kpis which are operational 159 id, at. 67. 160 id, at. 67. 161 id, at. 68. http://journal.unnes.ac.id/sju/index.php/jils 380 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils parameters intended to measure the performance of the ibe.162 as part of the ibe’s obligation, the ibe is required to provide services and continuously operate and maintain the project in accordance with the kpis.163 the service indicators agreed in the pa between bakti kominfo and prb is a minimum level of service availability of 95% with a service reliability level of 100 milliseconds.164 availability here refers to the availability of services from the service city to the interconnected city and reliability refers to the reliability of the device in delivering data/services from the service city to the interconnected city.165 syarif lumintarjo, president director of prb, details that the five service cities, comprising of bengkalis, tebing tinggi, ranai, tarempa and daik lingga, are the basis of the service indicators.166 the kpis are determined by the availability of services in these 5 cities.167 further, there are two actions to fulfil and achieve service indicators namely preventive maintenance, which is done through periodical service and corrective maintenance, which is repair and restoring connectivity.168 as part of preventative maintenance, prb assigns pt ketrosden triasmitra to patrol undersea fiber optic cables preventing cable damage, prb tracks public works projects on land, maintain electricity supply and power generator checks and cooling or heat conditions at the nocs.169 in terms of corrective maintenance, repairs to restore normal connectivity availability are done by repair 162 palapa ring western package agreement 284/m.kominfo/hk.03.02/02/2016, 002/prb/pd-dir/ii/2016. 163 id. 164 andrew nathaniel, supra note. 165 id. 166 andrew nathaniel, supra note. 167 id. 168 id. 169 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 381 available online at http://journal.unnes.ac.id/sju/index.php/jils ships if occurring in the sea and by ground repair teams if occurring on land.170 both preventive and corrective maintenance are important, but the priority is to prevent as to keep service indicators within agreed sla parameters and the pa.171 the ibe’s performance in achieving the contractually agreed service indicators in each month in each regency/service city must be assessed with specifically laid out kpis.172 since the commercial operational date (“cod”), the gca is required to make monthly availability payments to the ibe calculated according to the formula as set out in appendix 11 on availability payment. kominfo as the gca assigns bakti, that is under it, to act on behalf of it to receive invoices from ibe, conduct checks on the accuracy of invoices from ibe and make availability payments to ibe in accordance with pa provisions and based on the specified components. these components are made up of the five service cities with each accounting for 20%. if in each month the invoice for the performance of the ibe in each service regency/city fails to meet or exceeds the key performance indicators, the ap in the billing month for the regency/city of the related service area is adjusted.173 there is no explicit stipulation on incentives or deductions within the pa or the appendixes, but the basis of any ap paid out to the ibe by the gca relies on the mathematical formula to avoid confusion and maintain clarity.174 the weekly meeting between the gca, ibe and other relevant stakeholders also ensures that any circumstance of note would be discussed and properly walked 170 id. 171 id. 172 palapa ring western package agreement 284/m.kominfo/hk.03.02/02/2016, 002/prb/pd-dir/ii/2016, appendix 12. 173 id. 174 id. http://journal.unnes.ac.id/sju/index.php/jils 382 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils through.175 the contract formula allows so that short interruptions, disruptions, or disconnection of service connectivity, on part of the ibe or by a third-party, does not significantly impact the ap amount to the ibe.176 the 95% availability minimum provides room so that slight problems in one specific service regency/city does not automatically translate to a deduction of ap to the ibe.177 the formula is the basis of determining the payment amount, thus any deduction is not explicit, but in line with performance. conclusion the ibe has the obligation for contingent cost liabilities outside of the determined availability payment amount in the partnership agreement in the occurrence of damage caused by a third party which interrupts or disrupts infrastructure service availability. this is due to the fact that pr 38/2015 provides a new option of availability payment (“ap”) as an roi scheme for private party partners for infrastructure development. moreover, mfr 260/2016 stipulates that the ap scheme can be used if the ppp pa at least contains provisions on objective and measurable output specifications and performance indicators for services. given that the palapa ring western package ppp pa is a contract dependent on consistent performance and availability on the part of the ibe for ap to be paid out, the ibe has the obligation to maintain connectivity and resolve all issues that would affect services in any way. this is a risk of operation and maintenance allocated to the ibe under the pa and becomes their obligation to perform to secure its interests. on the other hand, the 175 id. 176 id. 177 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 383 available online at http://journal.unnes.ac.id/sju/index.php/jils gca has the right to penalize availability payment amount to the ibe in the occurrence of damage caused by a third party which interrupts or disrupts infrastructure service availability. this is because mfr 260/2016 sets out that for the ap roi scheme to be implemented in a ppp project, there must be ap calculation formula (agreed formula) as the basis to determine the gca’s financial right and/or obligations to the ibe; and an effective monitoring system against the performance indicators. additionally, article 6 (2) of mfr 260/2016 allows for the ppp pa that is drawn up by the gca and ibe to determine how they would regulate a system of incentives and penalties for the gca and/or the ibe, in order to maintain the level of service quality provided by the ibe to service users, which provides large room for free contract negotiation. references 109 ministry of communication and informatics of the republic of indonesia. 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(2008). a life-cycle risk management framework for ppp infrastructure projects. journal of financial management of property and construction, 13(2). https://doi.org/10.1108/13664380810898131 about authors andrew william john nathaniel is a graduate of the faculty of law, universitas indonesia. he has previously assisted research at his faculty on various issues such as international investments, project financing, and helped in a large-scale project research commissioned by the ministry of transportation to advise on private sector investment for airports and services infrastructure development through public-private partnership financing and contracting. during his studies, andrew was selected to represent the faculty of law, universitas indonesia at the 21st international maritime law arbitration moot (imlam) competition hosted by singapore management university school of law. andrew’s scope of experiences outside of academic research includes working on public policy at the executive office of the president of the republic of indonesia, defence industry advisory, business development, and trade negotiation. beyond law, he has strong interests in banking, market analysis, investments, trade, project financing, corporate strategy, and m&a. at the time of this publication, andrew is working professionally as part of a global market research consultancy firm and will soon be joining an international bank. yetty komalasari dewi earned her bachelor degree (sh) and doctoral degree (dr) from faculty of law, universitas indonesia (ui) in 1993 dan 2011; and her master of legal institution (ml.i) from school of law, university of wisconsin-madison, the united states of america in 2003. currently, she is in charge for numbers of course namely trade/commercial law, corporate/company law, investment law, arbitration (commercial/investment), international trade law (wto law), both in undergraduate and graduate levels. she was an exchange professor at kumamoto university, japan (2016). she is member of subject editors of asian journal of comparative law (2018-2021) published by the national university of singapore, and member of reviewer boards in several law school in indonesia. yetty’s area of research is corporate/company law, commercial/trade law and investment law. she is actively involved in research activities funded by ministry of higher education, ui, and other institutions, such as the indonesian coast guard, bank of indonesia, indonesian investment coordinating board, ministry of industrial affairs, corruption eradication commission, regional representative council, ministry of trade, ministry of transportation, etc. yetty’s publications include books and articles. her books among others are: indonesian partnership law: theory and cases, a new paradigm on commanditaire vennotschap (cv): a comparative study with the indonesian commercial code and the netherland commercial code as well as court decisions in indonesia and the netherlands, introduction to commercial law, alternative defense mechanism in international trade for domestic industries, the development of commercial law in indonesia: limited liability partnership (llp) and civil company/partnership (maatschap) as a business organization (book-chapter). some of her articles are: the need to adopt a limited liability partnership for the legal profession in the partnership law: a critical review from indonesia’s perspective; cost of maritime security inspection to merchant ship operator – the indonesian shipowners’ perspective; a critique towards australian work and holiday visa subclass 462: where does it leave indonesian citizen?; abuse of rights by majority shareholders in indonesian family ownedcompany: is it likely?; dispute settlement mechanism in bilateral investment treaties; readiness of indonesia in facing the asean economic community (mea) 2015. shatila dhiyaannisaa sani earned her bachelor of laws (ll.b.) degree from the london school of economics and political science (lse) in 2015 and her master of laws (ll.m.) degree from university of california, berkeley – school of law (berkeley law) in 2022 with certificate of specialization in business law. shatila is currently working as a corporate lawyer in a private practice and has worked on various domestic and cross-border corporate deals. shatila’s area of interest is corporate, company, finance, capital market and technology-related laws. during her time at lse, she served as the committee member of the lse students’ union law and financial markets society. while at berkeley law, she actively attended events and discussions held by berkeley center for law and business. shatila had written on (i) u.s. securities and exchange commission’s proposed amendments to beneficial ownership reporting obligations under schedule 13d, (ii) assessing the potentials, obstacles and risks of using defi to fill the msme finance gap in indonesia and (iii) misappropriation of trade secrets under california civil code section 3426. http://journal.unnes.ac.id/sju/index.php/jils 21 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 volume 4 issue 01 may 2019 jils 4 (1) 2019, pp. 21-44 issn (print) 2548-1584 issn (online) 2548-1592 law enforcement, military discipline, and the notion of military justice: building a case for the constitutional rights of service personnel in nigeria olusola babatunde adegbite olusola babatunde adegbite department of public law, faculty of law, obafemi awolowo university, ile-ife, nigeria, ph. d. candidate, rhodes university, grahamstown, eastern cape, south africa  adegbite@law.cardozo.yu.edu, g19a2584@campus.ru.ac.za table of contents introduction …………………………………………………….. 22 the military life and the notion of military discipline ………………..………………………………………….. 23 offences in the military ………………………………….… 26 procedure for enforcement of offences in the nigerian military …………………………………….………… 28 procedure for trial and types of court martial 30 law enforcement and the constitutional rights of service personnel: the nigerian experience ………………………………………………………… 33 the development of service personnel constitutional rights under the american military justice system: any lessons for nigeria? 38 conclusion ………………………………………………………… 40 references …………………………………………………………. 41 10.15294/jils.v4i01.28967 copyright © 2019 by author(s) this work is licensed under a creative commons attributionsharealike 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. jils (journal of indonesian legal studies) mailto:adegbite@law.cardozo.yu.edu mailto:g19a2584@campus.ru.ac.za 22 http://journal.unnes.ac.id/sju/index.php/jils olusola babatunde adegbite jils 4 (1) may 2019, 21-44 article info abstract submitted on february 2019 approved on march 2019 published on may 2019 law enforcement is the pivot on which every society and institution stands and essentially survives on. an institution where enforcement of the law is in abeyance will surely not endure, as whatever goals are set is condemned to smoulder in total indiscipline. without doubt, no institution would want to set off on that footing. however, where law enforcement takes place in a special institution like the military, its deployment is bound to raise deep questions regarding the constitutional rights of the accused persons. over the years, the nigerian military appear to have been caught in this miasma in which the constitutional rights of its service men has remained trapped in the notion of upholding military discipline. it is to this end that this paper appraises the question of law enforcement in the nigerian military, querying its attitude towards the safeguards of these rights, and accordingly building a case for a new and better regime, in which constitutional rights of service personnel are not only guaranteed, but regarded as pre-eminent. keywords: law enforcement, military dicipline, constitutional rights, nigeria, military justice, how to cite (chicago manual style) adegbite, olusola babatunde. “law enforcement, military discipline, and the notion of military justice: building a case for the constitutional rights of service personnel in nigeria”, jils (journal of indonesian legal studies), 4 (1), 2019: 21-44 introduction within the context of the general society, the responsibility of law enforcement lies in the hands of the police (the police act, nigeria 2004), and other relevant state security agencies 1 . the police and these other bodies act as agents of the state in the maintenance of law and order, and in 1 notable amongst these include specialized institutions such as the nigerian customs service, the nigerian prisons service, nigeria security and civil defence corps (nscdc), economic and financial crimes commission (efcc), independent corrupt practices and other related offences commission (icpc), national drug law enforcement agency (ndlea), national agency for food drug administration and control (nafdac), federal road safety commission (frsc), standards organization of nigeria (son), e.t.c. 23 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 extension regulate the conduct of human affairs. however, aside from the civilian type of law enforcement, there also exists another type more sui generis in nature. servicemen just like other members of the society are subject to the general laws of the land and bound by the jurisdiction of the conventional courts. additionally, they are also, more specifically this time, subject to a regime of special laws which strictly regulates their profession, conduct, behavior, duties, obligations, rights, and other areas of their job as soldiers. this refers to law enforcement within the province of military law 2 . the status of the soldier/service personnel within a democratic cum constitutional framework is a complicated one. on the one hand, upon his enlistment into the armed forces it is deemed that there now exist a change in his legal status which compels that he is subject to the terms of the „military contact‟ as well as the provisions of relevant military laws, which serves the dual purpose of regimenting him to military discipline, as well as preparing him as a ready asset for the overall fighting force. on the other hand, given that such soldier still remains a citizen of the state, it is equally deemed that he is not only subject to the same liabilities as other citizens, but more importantly that he is still assured of his constitutionally guaranteed rights that military service does not attenuate. it is within this complicated web that the punishment of service personnel for offences comes into scholarly focus. we hear of the term “court martial” all the time, but not many have a clear insight into what goes into the final determination of matters in this special court. can we say that the rules in military books ensure that justice is done at all times, or is it just a question of justice their own way? what about the question of the serviceman‟s constitutional rights? does the spirit and letters of military compacts signals the death of the soldier‟s rights, or is there a mutually beneficial co-existence of the two? striking the right balance between these important, but unequal streams of law, requires a deep understanding of where they meet and where they part. these are current issues at the core of the intellectual ferment surrounding the constitutional rights of service personal in military law enforcement. the military life and the notion of military discipline there is no gainsaying that soldiers are creatures of discipline, with nearly all aspects of their professional lives governed by orders (icrc 2011). while on the one hand military justice and discipline appears to operate independently of each another, on the other hand both are not mutually exclusive, as they interconnect and serve as the legal pedestal on which law 2 generally, military law is defined as “the body of laws, rules, and regulations that have been developed to meet the needs of the military. it encompasses service in the military, the constitutional rights of service members, the military criminal justice system, and the international law of armed conflicts”. 24 http://journal.unnes.ac.id/sju/index.php/jils olusola babatunde adegbite jils 4 (1) may 2019, 21-44 enforcement is applied in the military (ghiotto 2014). the historical premise of military discipline and the concept of punishing soldiers for unlawful conducts, as well as illegal acts has its roots in ancient practices of the roman military establishment (brand 1968). under the old roman military justice system, soldiers of rome's legion when accused of violations of extant military laws were made to undergo summary trials with the result that the punishment was always brutal in nature (brand 1968). appearing to illuminate the brutality involved in early forms of military discipline, a leading military law scholar joseph bishop once opined that the popular legal doctrine which states that it is better that ninety-nine guilty men go scot-free, than for one man to be innocently convicted, has no basis in the notion of military discipline (bishop 1964). in making this assertion, bishop was of the view that if a soldier who deserts and manages to run away is eventually shot, the heartening effect is greatly reduced if not obliterated where correspondingly ninety-nine out of a hundred deserters also get away (bishop 1964). bishop‟s postulation appears to sum up the state of mind regarding law enforcement in the military. under the roman system, offences deemed legally impermissible could be classified as atrocities, even where such were carried out relying on lawful orders (green 1985) 3 , a framework that was further developed under canon law, and has since been sustained through the middle ages up to contemporary times (dawson, d & dawson, james d. 1996). this today forms the crux of what is known as the doctrine of obedience to lawful superior orders, a doctrine firmly at the core of law enforcement in the military 4 (lippman 2001; king 2002; insco 2003; bilsky 2004; moghalu 3 for example, the roman digest is known to have excluded certain acts regarded as “heinous” from the defense of obedience to lawful orders. see iv the digest of justinian, law 157, tit. xvii, lib. l, theodore mommsen & paul krueger (eds.) (university of pennsylvania press, 1985). this roman rule appear to have greatly inspired most modern military laws, which today have provisions excluding from the defense of „lawful orders‟, all forms of crime and criminality particularly those that are regarded as clearly “gross, indisputable, outrageous, universal, and without any doubt”. 4 the doctrine of superior orders is a defense a soldier pleads to a charge for crimes committed in the course of a war, on the ground that the acts so referred to, were carried out based on lawful superior orders. the superior order plea is deemed also deemed as a corollary of the complementary to the command responsibility defense which seeks to help a soldier escape personal liability for executing superior orders. the superior orders defense is rooted in more than four centuries of pre-modern historical practice, starting with the 1484 trial of peter von hagenbach who claimed that all the atrocities that were alleged of him where not of his personal decision. it significance in contemporary times however came to the fore during the nuremberg trials where some of the accused persons tried to raise it in defense, but its applicability for such an ad hoc prosecutorial process was struck down following the promulgation of the london charter of the international military tribunal which stated clearly that the defense of superior orders was invalid when it comes to allegations of war crimes. this position appears to be have been inspired by the earlier position under roman law in which acts considered as very atrocious and impermissible did not come under the superior orders rule. specifically, nuremberg principle iv provided that, “the fact that a person acted pursuant to order of 25 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 2006). under the current rule, the leading position is one that excuses only non-atrocious misdeeds by soldiers, while criminalizing all acts deemed as egregious. this rule is also a subset of the established military doctrine of respondeat superior‟ 5 (shakespeare, collins (ed) 1995), a rule that holds that the superior officer alone would be held liable for any unlawful conduct commanded of subordinates. the key behind this rule is that it helps institutionalize a system of total obedience to orders, so military discipline is maintained always. in an obedience to superior orders regime, military discipline flourishes and respect for military authority remains at an all times high. this is exemplified in the works of william westmoreland, who speaking of military discipline opined as follows: discipline is an attitude of respect for authority which is developed by leadership, precept, and training. it is a state of mind which leads to a willingness to obey an order no matter how unpleasant or dangerous the task that is to be performed. discipline conditions the soldier to perform his military duty even if it requires him to act in a way that is highly in-consistent with his basic instinct for self-preservation (westmoreland 1971). thus, the military life is one in which the soldier in a proper understanding of the delicateness of his assignment, is expected to display peculiar virtues of character and general moral principles of an uncommon nature, all within a highly regimented framework that is followed through his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him”. however, the doctrine was to later resurface on the international scene during the trial of the notorious nazi war criminal, adolf eichmann. over the years, the doctrine has evolved in a rather chequered manner, such that its application in international criminal prosecution has been greatly narrowed. for instance, the rome statute of the international criminal court under article 33 referred to as “superior orders and prescription of law”, provides that; “the fact that a crime within the jurisdiction of the court has been committed by a person pursuant to an order of a government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) the person was under a legal obligation to obey orders of the government or the superior in question; (b) the person did not know that the order was unlawful; and (c) the order was not manifestly unlawful. for the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful”. the doctrine has remained a most controversial item in most scholarly works. 5 shakespeare captures the idea of respondeat superior perfectly, in his dramatic account in one of his works henry v, where an infantryman had hailed the king's cause as „just and honorable‟. the conversation then went thus–“that's more than we know”, replies a second infantryman; then add a third, “ay, or more than we should seek after, for we know enough if we know we are the king's subjects. if his cause be wrong, our obedience to the king wipes the crime of it out of us”. 26 http://journal.unnes.ac.id/sju/index.php/jils olusola babatunde adegbite jils 4 (1) may 2019, 21-44 consistently 6 (clausewitz, rapoport (ed.) 1968; huntington 1957; miller 1996). for instance, matters such as the soldier‟s daily regime of different strata of rigorous exercises, difficult tasks, and hard labor, as well as a form of seclusion from the society which is signified by the „barrack life‟ (boane, 1990), are things carefully designed to disconnect him from unwarranted behaviors and a corresponding capacity not to contemplate any. in the military, discipline is a fundamental hallmark of military service. this tradition evolved from certain historical objectives separating the soldier from other members of the society. first is the fact that the work of the military which involves defending the nation from external aggression and territorial integrity is a hard one that requires troop‟s preparedness, and a high level of morale from the rank and file, as well as the officers corps. second, the principal job of the military is about fighting wars and most often, particularly when the call out of troops is based on an emergency, the military objective is not always entirely clear both to the commanding officer as well as his troops, as such there is a measure of discipline required so as not to lose focus, and to be able to switch strategy at the slightest call. these apparently uncommon characteristics make the service personnel‟s work a unique one in which control must be activated at all times. where a commanding officer loses control of his troops, or where the military high command loses authority of its forces, it is as good as saying that all is lost. it is within this context that offences are viewed quite seriously in military circles. offences in the military generally, any act of service personnel which brings disgrace or contempt to the military as an institution is subject to the penalties of military law (monroe 1942). in the nigerian context, offences punishable in military circles range from minor infractions related to military discipline, to very serious offences occasioning death. under nigerian military law, offences are specifically defined with corresponding sanctions or punishments as the case 6 this unique life of the serviceman appears to be the theme of the renowned military strategy theorist carl clausewitz, when he said, “every special calling in life, if it is to be followed with success, requires peculiar qualifications of understanding and soul”. clausewitz was equally of the opinion that “at the heart of any army, there would always be a cadre of professionals who would fight, not out of patriotism but...from sheer professional pride”. according to him, the professional army, “is mindful of all these duties and qualities by virtue of the single powerful idea of the honor of its arms-such an army is imbued with the true military spirit”. adding to this understanding, samuel huntington on his part postulates on a kind of military ethics that speaks of “the permanence, irrationality, weakness and evil in human nature... the supremacy of society over the individual and his rights”, including, “the importance of order, hierarchy, and division of functions”. the same idea is further reflected in the works of richard miller who in expanding this thought, spoke about the excellency of character and this finds expression in individual personal identity. 27 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 may be. 7 for military personnel, offences are broadly of two types, there are: (1) military offences, and (2) civil offences. 1. military offences military offences are simply contraventions of the rules laid down for the enforcement of military discipline. these regulations are contained in nigeria‟s principal military law, the armed forces act 8 (hereinafter referred to as „the act‟). persons to be tried under this act must be subject to what is known in military circle as service laws. section 168 and 169 of the act provides grounds for bringing offenders who have ceased to be subject to service laws for trial under the decree. these offences are peculiar to service personnel and civilians who come under section 272 of the act. it will be noted that a few civil offences are reflected in what constitutes military offences. under the act, military offences includes the following aiding the enemy (the armed forces act, section 45(1)(2)(3) nigeria 2004), communication with the enemy (section 46(1)(2)(3)), cowardly behavior (section 47(1)(2)(3)), offences against morale (section 48), becoming a prisoner of war through disobedience or willful neglect and failure to rejoin armed forces (section 49(1)(2)(3)), offences by or in relation to sentries (section 50(1)(2)(3)(4)(5)(6)), looting (section 51), mutiny (section 52(1)(2)(3)), failure to suppress mutiny (section 53(1)(2)), insubordinate behavior (section 54(1)(2)(3)), fighting, quarrelling and disorderly behavior (section 55), disobedience to particular orders (section 56(1)(2)), disobedience to standing orders (section 57(1)(2)), obstruction of provost officers (section 58), absence without leave (section 59), desertion (section 60(1)(2)(3)(4)), assisting and concealing desertion and absence without leave (section 61), failure to perform military duties (section 62), malingering (section 63(1)(2)(3)), drunkenness (section 64(1)(2)), drug: wrongful use, possession, e.t.c of uncontrolled substance (section 65(1)(2)), offences in relation to property (section 66), offences in relation to properties of members of the armed forces (section 67), miscellaneous offences relating to property (section 68 (1)(2)), loss or hazarding vehicle, ship, or aircraft (section 69), dangerous flying (section 70), low flying (section 71), annoyance by navigation or flying (section 72), other offences in respect of ships and aircrafts (section 73 & 74), prize offences (section 75 & 76), 7 emphasis here is laid on the written aspects of the constitution of the federal republic of nigeria, 1999(as amended) especially in section 36(12), which provides that, “subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof is prescribed in a written law, and in this subsection, a written law refers to an act of the national assembly or a law of a state, any subsidiary legislation or instrument under the provisions of a law.” 8 cap a20, laws of federation of nigeria (lfn), 2004 (1993 no.105), which came into force 6th july, 1994, and which is a review of the nigerian army act, 1960, enacted by the legislature of the federal republic of nigeria in 1960. 28 http://journal.unnes.ac.id/sju/index.php/jils olusola babatunde adegbite jils 4 (1) may 2019, 21-44 sexual offences (section 77-81), billeting offences (section 82), offences in relation to requisitioning of vehicles (section 83), offences relating to and by persons in custody (section 84-87), miscellaneous offences (section 88-99), offences in relation to court martial (section 100-113), other civil offences (section 114). the above represent what constitute offences under the act. it should be noted that in the course of investigating an offence that has been committed, or to prevent the commission of an offence it might become imperative to apprehend and detain the alleged offender. where arrest becomes necessary it must be done by a person who has legal powers to do so. 2. civil offences under the act, there is another class of offences called civil offences. the position under the general law is that if an offence is one for which the punishment is either a fine, or term of imprisonment or both, it is referred to as a crime. distinctively, if it is an infraction in which the tort-feasor makes reparations to the victim or his estate in form of damages for the injury caused, then it is a civil wrong and not a criminal offence. however, in the military where a crime is provided for by the civil authorities as contained for instance in the criminal code, or other criminal legislations, it is referred to as a civil offence. service personnel are subject to both military and civil laws, and in extension courts martial have jurisdiction over both military and civil offences. the act provides for civil offences (the armed force act, section 114, nigeria 2004). in a court-martial or any military trial, it is important that the appropriate section of the law providing for the civil offence be entered on the charge sheet, and must be explained by quoting the section or the civil enactment contravened, and the act constituting the contravention. procedure for enforcement of offences in the nigerian military arresting the offender is the first step in the prosecutorial process. a suspected offender may be placed under arrest to prevent him from damaging evidence, escaping, or prevent further illegal acts, or ensure the personal safety of the offender himself. a person subject to service laws under the decree may be arrested if found committing an offence, alleged to have committed an offence, or reasonably suspected of having committed the offence (the armed force act, section 121, nigeria 2004). it is important to note, that an officer may be arrested only by an officer of superior rank, however if he is found 29 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 engaging in quarrel or disorder of any kind, he may be arrested by an officer of any rank. 9 if for any reason, a service personnel under arrest is to remain in custody for a longer period than eight days without release, a special report should be made on the necessity for his continued detention. this report will be made every eight days until a court martial is assembled or the offence is dealt with summarily or the person is released from arrest. an offender may be detained in the following circumstances – (a) the seriousness of the allegation or accusation, for example murder or treason; (b) the need to establish the identity of the person under arrest; (c) the need to secure or preserve evidence relating to the allegation or accusation; (d) the need to prevent the continuation or repetition of the offence or any other offence; (e) the necessity to secure the safety of the person, other persons or property; (f) the need to forestall the actual or likelihood of interference with investigation, for example threatening, intimidating, incriminating or suborning of witnesses; (g) the need to prevent escape of the accused; (h) the fact that the accused has not surrendered but has been apprehended as an illegal absentee or has habitually absented himself. disciplinary powers of commanding officers as earlier observed, a key objective of military law is the maintenance of discipline and good order among troops. under the act, a variety of channels have been provided through which military discipline is applied and one is the authority of the commanding officer in the command and law enforcement chain. the commanding officers at various levels as executors of military discipline are given extended powers to investigate charges, and deal with offenders summarily, or through the avenue of a court-martial 10 (the armed forces act, sections 115-118, nigeria 2004). when an offence has been committed, the allegation shall be reported to the commanding officer of the accused in the form of a charge. the commanding officer shall investigate the charge in the prescribed manner 9 however, a soldier may be arrested by an officer, warrant, or petty officer or a noncommissioned officer subject to service laws. in this case, the person executing the arrest must be of superior rank to the offender. a provost or any officer, warrant, or petty officer, non-commissioned officer, or soldier, rating or air craftsman lawfully exercising authority under a provost officer or on his behalf may arrest any person subject to service law. a person authorized to effect arrest may use force as is reasonably necessary. power of arrest may be exercised either personally or by ordering into arrest the person to be arrested or by giving orders for that person‟s arrest. generally, arrest consists of actual seizure or touching a person‟s body with a view to detaining that person. it is imperative that before a person is arrested, he must be told by the person carrying out the arrest that he is being arrested, and the circumstances, or reason for such arrest be clearly stated. 10 exercise of these powers especially in the disposal of charges against accused persons vary according to the instruments of powers they possess. there are instances where a commanding officer may be appointed mainly for disciplinary purpose only. 30 http://journal.unnes.ac.id/sju/index.php/jils olusola babatunde adegbite jils 4 (1) may 2019, 21-44 (rule of procedure, no.8, fundamental rights (enforcement procedure) rules, nigeria 2009). the accused may be attached to another unit for the purpose of the investigation 11 . this however applies only in cases where the commanding officer is the only material witness. after investigating an offence, its nature and the rank of the accused determines the action to be taken in order to dispose of it. subject to the provisions of the act the commanding officer shall summarily deal with the charge (the armed forces act, section 105, nigeria 2004). where he is convinced that the charge cannot be summarily dealt with, he has the powers to refer the case to the appropriate superior authority (asa), or take steps to have the charge tried by a court-martial. the asa may deal with a charge referred to him summarily, remand for trial by court-martial, or refer it back to the commanding officer advising a retrial or dismissal of the charge. summary dealing with a charge according to the act refers to the commanding officer or appropriate superior authority taking the following actions – (a) dismissing the charge; (b) determining whether the accused is guilty; (c) where the accused is guilty recording a finding of guilty and awarding punishment; (d) condoning the offence. note that the act expressly provides that a commanding officer shall not deal summarily with a charge under certain sections of the act. 12 procedure for trial and types of court martial 1. classification of courts-martial senior military officers play an important role in all aspects of nigeria‟s military justice system. they are the ones empowered to adjudicate in the court-martial system and in carrying out their duties, they often function in roles similar to that of judges and other judicial authorities in the civilian criminal justice system. the court-martial is the military court-system where the accused person makes his/her case for a judicial determination. under the act, there are two (2) types of courts martial; a general court martial and a special court martial (the armed forces act, section 129, nigeria 2004). the main differences between the 2 types of court martial are – (a) the level at which they are convened including ranks of the membership; (b) the rank of the accused; (c) the nature of offence including the nature of punishment 11 this is based on the doctrine of natural justice i.e. the commanding officer, cannot be a judge in his own case, as enshrined in the latin maxim, nemo judex in causa sua, meaning, “no one hall be a judge in his own cause”. 12 these sections include 45, 46, 47, 48, 50, 51, 52, 53, 60, 65, 66, 67, 71, 72, 73, 75, 76, 83, 88, 91, 93, 95 and 98. see section 124(6)(a) of the armed forces act 1999, laws of the federation of nigeria (lfn)2004. 31 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 prescribed for the offence; (d) their composition especially the size and rank of the membership. 2. a general court martial a general court martial may be convened by (1) the president (as cin-c); (2) the chief of defense staff; (3) the respective service chiefs; (4) gocs of corresponding commanders; (5) brigade of corresponding commanders (section 131 (2)). also, the composition of a general court martial consists of at least 8 persons as follows (1) a president; (2) four members (not loss, may be more); (3) a waiting member; (4) a liaison officer; (5) a judge advocate who must be a lawyer. 3. a special court martial the power to convene a special court martial is defined as follows (1) a special court martial may be convened by any of the person who may convene a general court martial; (2) the commanding officer of a battalion or a corresponding unit (sections 131(3)). also a co or corresponding commander can convene; (3) commander of detached sub-unit who would otherwise not qualify under paragraph 1 above. a special court martial when eventually convened is usually composed of (1) a president; (2) two members (not less, may be more); (3) a waiting member; (4) liaison officer; (5) judge advocate. 4. jurisdiction of court-martials the act provides as follows: (1) a general court-martial shall, subject to the provisions of this act try a person subject to service law under this act for an offence which, under this act is tri-able by a court-martial and award for the offence a punishment authorized by this act for that offence, except that where the court-martial consists of less than seven members it shall not impose a sentence of death. (2) a general court-martial shall also have power to try a person subject to service law under this act, who by law of war is subject to trial by a military tribunal and may adjudge a punishment authorized by law of war or armed conflict. (3) a special court-martial shall have the powers of a general court-martial, except that where the court-martial consists of only two members, it shall not impose a sentence that exceeds imprisonment for a term of one year or of death (sections 130). 32 http://journal.unnes.ac.id/sju/index.php/jils olusola babatunde adegbite jils 4 (1) may 2019, 21-44 5. constitution of a court martial a court-martial shall be duly constituted if it consists of the president of the court-martial, not less than two other officers, and a waiting member (section 133 (1)). the president of a court-martial shall be appointed by order of the convening officer and shall not be under the rank of major or corresponding rank, unless in the opinion of the convening officer, a major or an officer of corresponding rank having suitable qualifications is not, with due regard to the public service, available, so however that (a) the president of a court-martial shall not be under the rank of a captain or a corresponding rank; and (b) where an officer is to be tried, the president shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused (section 133 (3)). the act also states that the members of a court-martial, other than the president, shall be appointed by order of the convening officer or in such other manner as may be prescribed (section 133 (4)), and that a judge advocate shall be a commissioned officer who is qualified as a legal practitioner in nigeria with at least three years post-call experience, or failing that he shall on request by the convening officer be nominated by the directorate of legal services of the respective services of the armed forces (section 133 (6)). 6. arraignment of the accused person when a court-martial is sworn, an accused is arraigned on the charge contained in the charge sheet. arraignment consists of – (a) the reading of the commencement of the charge and the person named, “the accused”; (b) the reading of each charge separately to the accused and called upon him to plead to it. the arraignment is conducted by the president and the judge advocate. where two or more accused persons are being tried jointly, one accused may apply to be tried separately on the grounds that unless so tried, he will be prejudiced in his defense. where there are several charges in a charge sheet the accused may, before pleading to the charge, apply for separate trial on any charge on the ground that unless so tried he will be prejudiced in his defense. it is instructive to state that courts martial are required to observe and apply the rule of admissibility of evidence as is observed in the civil courts. both the investigation by commanding officer (taking of summary and abstract of evidence) and the evidence at the trial must be done in accordance with the rule of evidence (section 143). in addition, the council 13 has the power to hold disciplinary proceedings against an officer, concurrently with criminal proceedings in court on the same matter 14 (section 1 of the armed forces 13 the council in this event would the army council, naval council, or air force council. 14 it provides that, “notwithstanding anything contrary in any law, the appropriate council or board of each force of the armed forces of the federation( in this act referred to as the council), may institute, and where instituted, may continue disciplinary proceedings 33 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 (disciplinary proceedings) (special provisions) act, nigeria 2004), and even punish after an acquittal 15 (section 2 of the armed forces (disciplinary proceedings) (special provisions) act, nigeria 2004). law enforcement and the constitutional rights of service personnel: the nigerian experience over the course of history, there has remained an ongoing tension between certain aspects of military law and the constitution, particularly as it relates to the constitutional rights of service personnel. this is significant because the balance between military discipline and the notion of individual rights was not always so carefully calibrated. in nigeria, courts-martial as military courts derive their validity from the authority of the act and are therefore „special‟ in nature and appear separate from the courts listed under the constitution (section 6 constitution of the federal republic of nigeria, (as amended to 2010), nigeria 1999), except that they can be classified under the heading of, “such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the national assembly may make laws” (section 6(5)(j) nigeria 1999). as their jurisdiction is primarily statutory, the exercise thereof is expressly circumscribed by the acts creating the courts, except that where the court in its operation conflict with the constitution, the latter clearly overrides 16 (section 1(3), nigeria 1999). the current understanding within the framework of military courts as gatekeepers of law enforcement, is one that is founded on the notion that the entire military justice system must from the start of the trial proceedings to the end, safeguard the constitutional rights of the accused service personnel. the nigerian constitution as the nation‟s principal legal document under chapter against any person subject to military law( hereinafter referred to as an “officer”) whether or not (a) criminal proceedings have been instituted with respect to such a person in any court of law in nigeria or elsewhere or are about to be instituted or are contemplated; or the grounds upon which any criminal charge is based or is to be based is substantially the same as that upon which the disciplinary proceedings were or are to be instituted”. 15 here the law provides that; an officer acquitted on a criminal charge for an offence or given a discharge, whether amounting to an acquittal or not, in any court of law may be dismissed or otherwise punished in accordance with any disciplinary provisions on any charge arising out of his conduct in the matter if the council is satisfied” (a) that his conduct in the matter has been in any respect blameworthy; or that it is in the interest of the force where he is deployed and generally in the interest of the armed forces as a whole that he be so punished”. 16 the constitution provides thus, “if any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall, to the extent of its inconsistency, be void” 34 http://journal.unnes.ac.id/sju/index.php/jils olusola babatunde adegbite jils 4 (1) may 2019, 21-44 iv provides for a long-list of such rights 17 . these rights are not only protected, but are deemed enforceable whenever they are violated, are been violated, or likely to be violated 18 . while all of these rights remain totally inalienable, and are held in permanence by the service personnel notwithstanding his/her being subject to service laws, two of these rights critically stand out in terms of their application, protection, and safeguard within military law enforcement framework. these are the right to personal liberty as guaranteed under section 35 of the constitution, and the right to fair hearing which is also to be found in section 36 of the same document. both rights are essentially key in any trial proceeding involving the service personnel and must be seen to be upheld at all times. as regards the right to personal liberty it is a cardinal rule that upon arrest, the accused person may choose not to utter a word or make any statement. in upholding this rule the constitution clearly provides that, “any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice” (section 35(2) nigeria 1999). this constitutional guarantee is also further reinforced under the administration of criminal justice act, 2015 19 . this powerful doctrine has remained a long-standing cornerstone in several forward-thinking decisions of constitutional courts in 17 the rights includes – right to life (section 33); right to dignity of the human person (section 34); right to personal liberty (section 35); right to fair hearing (section 36); right to privacy (section 37); right to freedom of thought, conscience and religion (section 38); right to freedom of expression and the press (section 39); right to peaceful assembly & association (section 40); right to freedom of movement (section 41); right to freedom from discrimination (section 42); right to property and family life (section 43 &44). 18 section 46(1) provides that, “any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a high court in that state for redress”. 46(2) then additionally provides that, “subject to the provisions of this constitution, a high court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that state of any right to which the person who makes the application may be entitled under this chapter”. 19 section 6 of the acja provides that, “(1) except when the suspect is in the actual course of the commission of an offence or is pursued immediately after the commission of an offence or has escaped from lawful custody, the police officer or other persons making the arrest shall inform the suspect immediately of the reason for the arrest. (2) the police officer or the person making the arrest or the police officer in charge of a police station shall inform the suspect of his rights to: (a) remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice; (b) consult a legal practitioner of his choice before making, endorsing or writing any statement or answering any question put to him after arrest; and notification of cause of arrest and rights of suspect. (c) free legal representation by the legal aid council of nigeria where applicable: provided the authority having custody of the suspect shall have the responsibility of notifying the next of kin or relative of the suspect of the arrest at no cost to the suspect”. 35 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 leading jurisdictions seeking to re-affirm the fundamental protections a suspect under interrogation is guaranteed within the fullness of his/her rights. the historical origin of this doctrine remains an ongoing contest 20 (langbein, hemholz et al (eds) 1997), however its modern application was laid in the groundbreaking decision of the us supreme court in miranda v. arizona 21 , where the court established the right of the accused person to remain silent at all times 22 . of course, the basis of miranda is to be found under us 20 scholars remain divided on the origin of the right to silent doctrine. a leading position however is that which subscribes to the view that the foundations of 21st century privileges as it relates to the right to remain silent is connected to the rivalry between the common law courts preferred independently gathered evidence as valid, and the ecclesiastical courts which tiled more toward the use of confessional statements. both courts where of the old english order. 21 384 u.s. 436 (1966). in this case, ernesto arturo miranda was in 1963 arrested by the phoenix police department and charged with the crime of kidnapping and raping an eighteen-year-old lady. in the course of his interrogation, he was made to sign a confession in which he owned up to the rape charge, however at the commencement of trial, when prosecutors tried to tender miranda‟s confession in evidence, his attorney objected saying the confession was in no way voluntary and should be rejected. the court disagreed with the position of miranda‟s lawyer and he was subsequently convicted and sentenced to 20years on each of the charges. on appeal to the arizona supreme court, the court affirmed miranda‟s conviction saying it saw no involuntariness in miranda‟s confession particularly give hat miranda did not specifically request an attorney at the time of making his confessional statement. miranda finally appealed to the us supreme court, where the apex court reversed the two courts below. the court held that in light of the manner and type of coercion by which miranda‟s purported confession to the phoenix police department had been procured, it could not be said to be voluntary and was therefore inadmissible under the fifth amendment to the us constitution which provides for the right against self-incrimination, as well as the sixth amendment which entitles all accused person a right to an attorney. delivering the opinion of the court, chief justice earl warren went ahead to establish the landmark right that is now a major cornerstone of constitutional law i.e. „the right to remain silent‟. he doing so he powerfully opined as follows; “the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her”. the warren court further went on to say that: “if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease... if the individual states that he wants an attorney, the interrogation must cease until an attorney is present. at that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning”. following this landmark judgement, miranda's conviction was accordingly overturned. miranda is today a fundamental doctrine particularly as it relates to a judicial determination of guilt and has been applied meritoriously in a plethora of cases. see berkemer v. mccarty, 468 u.s. 420 (1984). see also berghuis v. thompkins, 560 u.s. 370 (2010), where a suspect decides not to either invoke or waive his miranda rights. 22 this rule is today the most important pillar of the interrogation process as a prelude to criminal prosecution. the ratio of the court‟s decision is captured in the popular miranda rights which is mandated to be read to every person upon arrest, with the words, “you 36 http://journal.unnes.ac.id/sju/index.php/jils olusola babatunde adegbite jils 4 (1) may 2019, 21-44 constitutional framework, where the privilege against self-incrimination as a product of the fifth amendment 23 , allows a person to refuse to testify against himself in a criminal proceeding, as well as to answer official questions, particularly “where the answers might incriminate him in future criminal proceedings” (hapner 2015). in addition to the right to remain silent, the nigerian constitution provides for other rights such as the right to be informed promptly in the language that one understands as well as the details/nature of the offence in question, the right to defend oneself in person or by a legal practitioner of one‟s choice, the right to be given adequate time to prepare one‟s defense, the right to have an interpreter free of charge, the right to be presumed innocent until one is proven guilty, the right not to be charged for an unwritten offence or a retroactive offence, the right to have record of the proceeding kept, and the right to have copies of this within seven days of the conclusion of the case (section 35 & 36, the constitution, nigeria 1999). it is however a sad commentary that notwithstanding this explicit guarantee of the nigerian serviceman‟s constitutional right to remain silent, often times in the interrogation process preceding court martial proceedings, service personnel alleged to have committed one offence or the other are coerced into making statements, usually with the goal that such can be used as confessional tool forming part of the prosecution‟s basket of proof of evidence. such acts are clearly in violation of the service personnel‟s constitutional rights and are certain to render the entire proceeding a complete nullity, whether at the trial court or upon appeal. it clearly delegitimizes whatever the entire outcome of the court-martial proceeding may be and reflects more of military illegality as against military justice. quite instructively also the miranda decision dealt extensively with the military‟s practice of providing the accused person with lawyers as free defense counsel. this requirement is firstly a part of the right to personal liberty under section 35 and the right to fair hearing under section 36. the clause, “until after consultation with a legal practitioner or any other person of his own choice” clearly lends credence to the accused person‟s right of have a legal practitioner organize his defense to the charge. not only is the service personnel entitled to a legal practitioner, it must be free so as to excuse him of the financial burden of a criminal defense and it must be one that he consents to. the first reasoning behind the rule that the legal practitioner be free of charge rest on the need to manifestly secure the course of justice, which is a course itself rooted in the principle of fair hearing. the constitution clearly takes the issue of fair hearing very seriously, hence it provides that: have the right to remain silent, as anything you say can and would be used against you in a court of law”. 23 the fifth amendment provides that, “no person shall be compelled in any criminal case to be a witness against himself”. 37 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality (section 36(1), the constitution, nigeria 1999). the principle that in determining the guilt or otherwise of any individual, such must be accorded fair hearing is as old as the common law. this principle is espoused in the twin maxim “audi alteram partem” 24 and “nemo judex in causa sua” 25 , and clearly underpins the pivotal nature of this right. therefore, in line with the audi alpartem rule, the logic of justice is that both sides in a matter have an opportunity to be heard without any impediment. in this regard the boundaries of this rule is quite elastic, and all matters tilts more towards affording the accused person every opportunity of being heard. where there is a prevailing financial encumbrance on the accused service personnel depriving him/her of legal representation, this clearly does not paint a picture of both sides been heard. the second reasoning is based on the fact that it is the state that has instituted criminal proceeding against the accused service personnel, and not the other way round. again, the constitution is clear in this regard and it provides, “every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty” (section 36(5), the constitution, nigeria 1999). part of the demonstration that the accused person is innocent, is founded on the rule that he is not duty bound to prove his commission of the offence. this is a cardinal principle of law expressed in the latin maxim, “affirmati non neganti incumbit probatio” 26 . the accused is therefore entitled to simply do nothing all through the trial proceeding, except when called upon to enter his defense after the prosecution may have closed its case. in line with this position, it would therefore be akin to double jeopardy, to impose the twin burden of not only putting in an appearance, but one of financing an expensive defense on the accused, all for a charge which he may eventually be pronounced innocent. thus, the right of the accused service personnel to have a counsel freely provided for him by the state remains cast in stone. the nigerian military justice system must therefore rise to this task. it is important that the provisions of the act and other military regulations and court martial procedure rules, be made to reflect this all-important right. 24 this is translated to mean, “listen to the other side”. 25 this also means, “no one should be a judge in his own cause” 26 this is translated to mean, “the burden of proof is upon him who affirms and not on him who denies”. 38 http://journal.unnes.ac.id/sju/index.php/jils olusola babatunde adegbite jils 4 (1) may 2019, 21-44 the development of service personnel constitutional rights under the american military justice system: any lessons for nigeria? in the united states, the civil and constitutional rights of the serviceman and the civilian in the context of criminal prosecutions are implemented in two distinct legal settings, i.e. a civil system of state and federal courts including the united states supreme court, and a military system composed of courts martial, boards of review, and the united states court of military appeals (ulmer 2015). under american law, service personnel generally are issued a honorable discharge from military service upon a satisfaction of acceptable military conduct and performance of duty. notwithstanding this position, a member of the force cannot be denied a honorable discharge without due process of the law. 27 the former position under us military law was that servicemen generally enjoyed a level of constitutional protection that was inferior to that of civilians (hirschhorn 1984). for years, there remained an intense debate among scholars on the full applicability of constitutional right to the service personnel in the united states armed forces (henderson 1957; wiener 1985a; wiener 1985b). however following developments through statutes and judicial decisions, the constitutional divide on matters of right to due process for civilians and for service personnel has been significantly reduced such that today, any serviceman accused of an offence, enjoys nearly all constitutional due process rights accorded to civilians (mccoy 1969). a relevant example is the decision in united states v. stuckey (10 m.j. (347) 1981), where the u.s. court of appeals for the armed forces held that, “the bill of rights applies with full force to men and women in military service” 28 . this jurisprudence was later significantly advanced by the 27 the united states ex rel. roberson v.keating, 121 f. supp. 477 (n.d. ill. 1949). see also the fourteenth amendment to the us constitution, section 1 which provides that, “all persons born or naturalized in the united states, and subject to the jurisdiction thereof, are citizens of the united states and of the state wherein they reside. no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. 28 there are however few exceptions. key amongst them include the right to indictment by us grand jury and trial by petty jury, the right to be confronted in certain cases with adverse witnesses and right to bail. a reference to the us constitution reveals that the fifth amendment clearly states that the grand jury provision does not apply to, “cases arising in the land or naval forces, or in the militia, when in actual service, in time of war, or public danger.” in this respect also, the us supreme court has held that the sixth amendment‟s right to trial by jury is similarly inapplicable to courts-martial. the court has advanced the current jurisprudence by reaffirming the fact that some portions of the bill of rights is applicable to the military justice system, except that such application must be viewed differently against that of the civilians. 39 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 same court in united states v. easton (71 m.j. 168, 174-75, c.a.a.f. 2012), which now recognizes the general application of constitutional rights to the military justice system. 29 in addition, under the american system the concept of military justice is not foreign to the constitution. rather, just like every other aspect of public life that comes within the purview of congressional powers, the constitution provides that the us congress shall have the power, “to make rules for the government and regulation of the land and naval forces” (the us constitution, art. 1, sec. 8). one way in which the us congress has brilliantly deployed its powers above, is as regards its enactment of the uniform code of military justice (ucmj) in 1950, which immediately revolutionized the notion of military justice in the united states 30 . following its first draft, the ucmj has since been amended several times to bring it up to speed with complex matters of american military life. it is however instructive to say that one of the landmark achievements of the ucmj has been in the area of giving further expression to matters of constitutional rights as it applies to servicemen, such that today the code amongst other things provides for the right to counsel, right to a speedy trial, the right to a trial of the facts, the right to protection against double jeopardy, and the right against self-incrimination. this is certainly a framework that seeks to ensure that all matters regarding the military are not conducted outside the supreme authority of the constitution. interestingly, the nigerian constitution has a provision very similar to its american counterpart where it says, “the national assembly shall have power to make laws for the regulation of (a) the powers exercisable by the president as commander-in-chief of the armed forces of the federation; and (b) the appointment, promotion and disciplinary control of members of the armed forces of the federation” (section 218 (4), the constitution, nigeria 1999). sadly, as it has become self-evident this constitutional provision has operated as nothing more than a paper tiger, as the proper custodian of this all-important power i.e. the national assembly has failed abysmally in deploying it to good use, carrying on in total indifference, and preferring to 29 the opinion of the court in re-entrenching this rule is quite instructive. it stated as follows; “constitutional rights identified by the supreme court generally apply to members of the military, unless by text or scope they are plainly inapplicable. in general, the bill of rights applies to members of the military absent a specific exemption or certain overriding demands of discipline and duty. though we have consistently applied the bill of rights to members of the armed forces, except in cases where the express terms of the constitution make such application inapposite, these constitutional rights may apply differently to members of the armed forces than they do to civilians. the burden of showing that military conditions require a different rule than that prevailing in the civilian community is upon the party arguing for a different rule”. 30 the ucmj made up of about 150 statutory sections also provides for a system of court martial and other parts of the adjudicatory process such as pre-trial conferences, trial proceedings and post-trial procedures. the code also provided for the establishment of the court of military appeals which is now known as the court of appeals for the armed forces. 40 http://journal.unnes.ac.id/sju/index.php/jils olusola babatunde adegbite jils 4 (1) may 2019, 21-44 dump the matter on the laps of the executive branch. it is suggested therefore that now is time to reverse this unsavory trend. in addition to the provisions of chapter iv, the national assembly is called upon to proceed without favor or ill will towards anyone and give the needed teeth to the serviceman‟s rights and begin a new order of mandating the military to be constitutionally guided in its law enforcement procedures. with this sort of framework, matters of law enforcement and military discipline necessarily become subject to overriding constitutional provisions, as it is the case under the american military justice system, which is one that nigeria can gain a bit of insight from. conclusion the military is one institution that takes the question of enforcement of its laws very seriously. that accounts for why it is about the most disciplined institution to be found anywhere in the world. the sustenance of this tradition of enforcement is what has made discipline the hallmark of the military. however, the current understanding is one that leans in one direction only i.e. that every constitution contains components of a moral imperative demanding that every member of the society be treated as human, having an intrinsic value in themselves, and that the principal duty of a constitutional society is to protect this idea of humanity (hirschhorn 1984), with courts positioned as the beacon to translate these rights 31 . under the prevailing understanding, it is now the norm that servicemen do not abandon their rights when enlisting into the military 32 . there is no gainsaying that the recognition of constitutional rights within the framework of military law enforcement is still a developing area of the law in nigeria, and it is on this basis that a case is being made to ensure that a similar framework as what obtains in other jurisdictions is not only adopted here, but consistently improved upon. one must commend some stakeholders in this sector such as the nigerian army and the national human rights commission, who have already seized the gauntlet and are 31 major pillars of this doctrine is the same that upholds the standards of “compelling interest”, and “strict scrutiny” which the us supreme court‟s current approach to is assessing questions surrounding citizen‟s constitutional rights. 32 weiss v. united states, 510 u.s. 163 (1994), where a current justice of the us supreme court, justice ruth bader ginsburg spoke saying, “men and women in the armed forces do not leave constitutional safeguards and judicial protection behind when they enter military service. today's decision upholds a system of military justice notably more sensitive to due process concerns than the one prevailing through most of our country's history…”. justice ginsburg‟s position is in consonance with an earlier dictum of justice douglas who said, “a member of the armed forces is entitled to equal justice under law not as conceived by the generosity of a commander, but as written in the constitution…” see winters v. united states, 89 s.ct. 57, 59-60, 21 l.ed.2d 80, 84 (1968). 41 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 leading the way 33 (fapohunda 2016). we ask that they do not rest on their oars, even as others are called upon to toe the same line. more than ever before, it is now vitally of utmost necessity that every criminal proceeding under nigeria‟s military‟s law enforcement mechanism, is not just a satisfactory vehicle of constitutional rights of the accused servicemen, but more manifestly one which is so programmed to resolve constitutional rights grey areas, whenever such arises, in favor of such personnel. though the desired destination may appear a long way from where we are at the moment, but if we continue with the current measured steps, it is certain that in a few years from now, there would be no trace between our military justice system and where it used to be. references bishop, joseph w. “court-martial jurisdiction over military-civilian hybrids: retired regulars, reservists, and discharged prisoners”, university of pennsylvania law review, 112(3), 1964: 317-377. google scholar crossref bilsky, leora y. transformative justice: israeli identity on trial. michigan: university of michigan press, 2004. google scholar online boane, b. “how unique should the military be? a review of representative literature & outline of a synthetic formulation”, european journal of sociology, 31(1), 1990: 3-59. google scholar crossref brand, c.e. roman military law. texas: university of texas press, 1968. google scholar online clausewitz, carl von. on war, anatol rapoport (ed.), london, united kingdom: penguin books, 1968. google scholar online dawson, doyne & dawson, james d. the origins of western warfare: militarism and morality in the ancient world. new york, london: taylor & francis group, 1996. google scholar crossref fapohunda, olawale. “roundtable on the administration of military justice system in nigeria, a special session of the nigerian military human rights dialogue”, the nigerian voice, october 3, 2016, accessed 27/05/2018. online ghiotto, anthony j. “back to the future with the uniform code of military justice: the need to recalibrate the relationship between the military 33 in a major move in this regard, there was of recent a special session of the nigerian military human rights dialogue held on 27th september 2016, with the support of the chief of army staff and 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http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 shakespeare, william. king henry v, paul w. collins (ed)., hampshire, united kingdom: cengage learning emea, 1995) 264-265. google scholar online ulmer, s. sidney. military justice and the right to counsel. kentucky: university of kentucky press, 2015. google scholar online wiener, frederick b. “courts-martial and the constitution: the original practice i”, harvard law review, 72(1), 1958: 1-49. google scholar crossref wiener, frederick b. “courts-martial and the constitution: the original practice ii”, harvard law review, 72(2), 1958: 266-304. google scholar crossref westmoreland, w. “military justice a commander's viewpoint”, american criminal law review, 10(1), 1971: 1-5. google scholar crossref laws and regulations nigeria, the constitution of the federal republic of nigeria, 1999 (as amended to 2010). online nigeria, the police act, laws of the federation of nigeria (lfn), 2004. 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http://lawnigeria.com/lawsofthefederation/armed-forces-act.html https://www.refworld.org/pdfid/54f97e064.pdf http://lawnigeria.com/lawsofthefederation/armed-forces-%28disciplinary-proceedings%29-%28special-provisions%29-act.html https://www.archives.gov/founding-docs/constitution-transcript https://supreme.justia.com/cases/federal/us/384/436 https://supreme.justia.com/cases/federal/us/468/420/ https://supreme.justia.com/cases/federal/us/560/370/ https://law.justia.com/cases/federal/district-courts/fsupp/121/477/1627813/ https://www.loc.gov/rr/frd/military_law/pdf/06-1986.pdf https://supreme.justia.com/cases/federal/us/510/163/ https://law.justia.com/cases/federal/district-courts/fsupp/281/289/1575361/ http://www.caaflog.com/category/september-2011-term/united-states-v-easton/ 44 http://journal.unnes.ac.id/sju/index.php/jils olusola babatunde adegbite jils 4 (1) may 2019, 21-44 law quote “on the battlefield, the military pledges to leave no soldier behind. as a nation, let it be our pledge that when they return home, we leave no veteran behind”. ― dan lipinski source: https://www.brainyquote.com/topics/military. jils (journal of indonesian legal studies) volume 7(1) 2022 299 available online at http://journal.unnes.ac.id/sju/index.php/jils research article simple patent protection: a case of sarung tenun goyor indonesia and the comparison to malaysia utility innovation protection rohmat rohmat1 , waspiah waspiah2 david chuah cee wei3 1 supreme court of the republic of indonesia, jakarta, indonesia 2 faculty of law, universitas negeri semarang, indonesia 3 faculty of law, universiti kebangsaan malaysia, malaysia  rohmaat17@gmail.com submitted: feb 3, 2022 revised: april 15, 2022 accepted: may 30, 2022 abstract the work or products of smes are important for the protection of intellectual property rights. the sarung tenun goyor in its production process has gone through long ideas and experiments to produce a distinctive motif and shape, but it becomes a problem whether a traditional work can be subjected to simple patent protection and a discourse of justice and legal protection in domestic and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 7 issue 1, june 2022 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-0963-4937 https://orcid.org/0000-0002-9771-7774 https://orcid.org/0000-0002-2546-830x 300 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils instead ignores social values and the value of community justice. in addition, malaysia also has certain protection for utility innovalition that close to simple patent protection in indonesia. this study is intended to analyze the simple patent protection in the case of sarung tenun goyor indonesia and malaysia utility innovation protectopn. this study showed that to fulfill the novelty element, development of the existing production process could be carried out while still paying attention to the values of justice, social, and propriety. the fulfillment of access benefit sharing stipulated in law number 13 of 2016 concerning patents provides legal certainty of simple patent protection derived from traditional knowledge. whereas the production process of the sarung tenun goyor can be said to be a form of intellectual property and fulfills the elements as a simple patent object. the conclusion of this research is that the production process of the sarung tenun goyor has not received legal protection. the patent law provides legal certainty for the development of the sarung tenun goyor production process by fulfilling access benefit sharing (abs). keywords: legal protection, production process, simple patent, utility innovation, sarung tenun goyot http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 301 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 299 table of contents ……………………………..….………. 301 introduction ………………………………….……………. 302 legal status of development of sarung tenun goyor pemalang production process based on law number 13 of 2016 ……………………….….. 305 legal protection of simple patent of indonesia & malaysia (a case of sarung tenun goyor pemalang protection & malaysia utility innovation protection …. 320 conclusion ………………………………………….…..…… 333 references ………………………………………………….… 333 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. how to cite: rohmat, rohmat, waspiah waspiah, and david chuah cee wei. “simple patent protection: a case of sarung tenun goyor indonesia and the comparison to malaysia utility innovation protection”. journal of indonesian legal studies 7, no. 1 (2022): 299-338. https://doi.org/10.15294/jils.v7i1.55439. http://journal.unnes.ac.id/sju/index.php/jils 302 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction micro, small and medium enterprises (msmes) are an important part of indonesia's economic development. msmes centers are often not realized that they have produced intellectual property rights (ipr), one of which is a simple patent. these simple patents include not only products, but also processes or methods or product development or methods that are novel and can be applied in the industrial world.1 the work or product of msmes is important for the protection of intellectual property rights, this is considering that msmes products often have high economic value. msmes as smallscale industries still think that the protection of intellectual property is not an important thing.2 the state guarantees the protection of msmes that register their intellectual property. legal protection is a state obligation that must be given to its citizens.3 legal protection has a role in a work that is part of intellectual property which is often not realized by the public. even though with this legal protection, the right holder has the economic value of what has been protected by the intellectual property rights and if there are other parties who want to use the same intellectual property has an obligation to obtain a license first from the right holder.4 patent protection in indonesia is affirmed in law number 13 of 2016 concerning patents. the protection is in the form of exclusive rights 1 ermansyah djaja, hukum hak kekayaan intelektual (jakarta: sinar grafika, 2009). 2 inayah inayah, kesadaran hukum pelaku usaha mikro kecil menengah (umkm) dalam perlindungan kekayaan intelektual, 4 law and justice 120–136 (2019), 3 baimoldina svetlana malikovna, concept of legal protection of intellectual property rights, 176 procedia: social and behavioral sciences 998–1004 (2015). 4 waspiah waspiah, model percepatan komersialisasi paten sederhana pada dunia industri, 12 pandecta research law journal 86–105 (2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 303 available online at http://journal.unnes.ac.id/sju/index.php/jils owned by the inventor for the results of his invention in the field of technology for a certain period of time or giving approval to other parties to use the invention. meanwhile, the paris convention for the protection of industrial property guarantees international patent protection.5 similar to indonesia, malaysia also provides protection against simple patents. simple patents in malaysia are known as utility innovations, which provide protection to products or processes for “minor” inventions. utility innovation is an exclusive right granted to an innovator for a “minor” invention or innovation, which can be a product or a process that provides a new way of doing something or solves a specific technical problem in any field of technology. looking at protected objects, it provides similarities to simple patent protection objects in indonesia, in the form of processes. it is an interesting study that the development of the production process comes from traditional knowledge, such as the object in this study, namely the sarung tenun goyor pemalang. pemalang regency has a form of intellectual work in the form of the sarung tenun goyor or better known as the sarung goyor. this sarung tenun goyor is produced by one of the weaving-producing villages in pemalang, namely north wanarejan village, which is located in taman district.6 this north wanarejan village is a producer of sarung tenun goyors which have a characteristic with varied motifs and a distinctive appeal. this sarung tenun has a characteristic that when used it can adjust to existing weather conditions, it will feel cold when the weather is hot and vice versa. it is known in its history that the 5 dhaval chudasama and smit patel, “importance of intellectual property rights,” 4 journal of intellectual property (ip) rights law 16-22 (2021). 6 frisca ajengtirani ardiniken, titien woro murtini, and siti rukayah, pola tata ruang kampung industri rumah tangga studi kasus: sentra tenun atbm desa wanarejan utara dan desa troso jepara,” 14 tesa arsitektur 42–54 (2016), http://journal.unnes.ac.id/sju/index.php/jils 304 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils sarung tenun goyor has existed since the 1930s. meanwhile, the sarung tenun goyor began to be produced by the community as a housing industry in the 1950s.7 the sarung tenun goyor itself takes a short time to manufacture and tends to be complicated to make using a tool called a nonmachine weaving tool (alat tenun bukan mesin, herinafter as atbm). in the perspective of intellectual property in the form of patents, the process used in a production process to manufacture this product can be protected as a form of human intellectual work. tenun fabric made with non-machine weaving tools (atbm) is a traditional work that comes from fabric made from thread by inserting the thread transversely or following the pattern of motifs on the warp threads. the special thing that is obtained from a process like this is the uniqueness contained in each motif which of course will be different from each region. becoming a craft with cultural values, technical abilities, aesthetics, meanings, symbols and philosophy. protection of the sarung tenun goyor production process then becomes important, because basically there are inherent rights and can only be enjoyed by the inventor.8 the thought process of ideas and ideas as well as long experiments carried out to solve a problem in production activities is an important reason that this process becomes an asset and then gets its rights. however, in reality, there is a long process that is systematically made and arranged to produce 1 (one) sarung tenun goyor in wanarejan utara village. the sarung tenun goyor in the production process has gone through long ideas and experiments to produce a unique motif and shape and in practice has become communal ownership. in the simple 7 id. 8 mochammad bambang ribowo and kholis raisah, perlindungan hukum terhadap paten sederhana dalam sistem hukum paten di indonesia (studi komparasi dengan sistem hukum paten negara china), 12 notarius 42–60 (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 305 available online at http://journal.unnes.ac.id/sju/index.php/jils patent regime there is protection against inventions in the form of a production process. however, then it becomes a problem whether the traditional fabric production process can be protected through a simple patent protection system in indonesia and becomes a problem for the development of a traditional knowledge production process which later becomes a new invention that is considered to ignore social values and the value of justice in society.9 based on the above background, the problems to be studied are as follows: 1) how is the legal status of the development of the sarung tenun goyor production process based on law number 13 of 2016 concerning patents; and 2) how are the legal protections for the sarung tenun goyor production process in pemalang through indonesia's simple patent protection system? legal status of development of sarung tenun goyor pemalang production process based on law number 13 of 2016 legal protection of intellectual property is an important thing that must be fulfilled by the state against copyrighted works created by humans through their intellectual abilities.10 intellectual property has an important role in the economic development of a country. legal protection is given as a guarantee for the protection of intellectual property owned and the fulfillment of economic rights that can be enjoyed by the rights owner. since wealth or assets created 9 jabalnur jabalnur, perlindungan hak paten bagi pengrajin khas, 2 halo oleo law review 278–290 (2017). 10 chudasama and patel, supra note 5.” http://journal.unnes.ac.id/sju/index.php/jils 306 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils by human intellect or intelligence have economic worth or provide advantages to human existence, intellectual property has economic value.11 works that are born or produced on the basis of human intellectual capacities, whether via an outpouring of energy, thinking, creativity, taste, or purpose, should be protected by the intellectual property rights (ipr) system. the production process of the sarung tenun goyor becomes an interesting object for the author to analyze through a simple patent system. this is because a simple patent becomes an intellectual property regime that makes the process the object of its protection.12 to determine whether the production process for the sarung tenun goyor can be protected by a simple patent system or not, it's important to determine if the sarung tenun goyor manufacturing method qualifies as an innovation under indonesia's simple patent system. inventions in law number 13 of 2016 concerning patents are described in article 1 number 2, namely:13 “an invention is a concept developed by an inventor and implemented in a specific problemsolving activity in the field of technology, which can take the shape of a product or process, or the improvement and development of a product or process”. based on the provisions of the patent law above, it has been clearly stated that what is included in the scope of the invention is all technology, whether related to processes or products rather than technology. this was reaffirmed by ok. saidin14 which states that an 11 muhammad abdulkadir, kajian hukum ekonomi hak kekayaan intelektual (bandung: pt. citra aditya bakti, 2007). 12 syawal esa arrozi, perlindungan hukum terhadap paten sederhana di indonesia, thesis (mataram: universitas mataram, 2018). 13 republic of indonesia, law number 13 of 2016 concerning patents. state gazette of the republic of indonesia year 2016 number 176 (jakarta: sekretariat negara, 2016). 14 endang purwaningsih, evie rachmawati, and nur ariyanti, kebijakan paten melalui penguatan perlindungan invensi teknologi dan peningkatan kemampuan http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 307 available online at http://journal.unnes.ac.id/sju/index.php/jils invention as an invention in the field of technology and technology is basically an idea that is applied in industrial processes. thus, that a simple patent is granted to a work or invention idea in the field of technology, which can produce a product or only in the form of a process. the patent law governs the protection of patents, both complex and simple, either in the form of products or processes. the invention as referred to is explained through article 1 number 2. in the article it is not clearly stated what process limits can be categorized as inventions, whether all processes can be categorized as unconditional inventions or there are indeed limitations that can be used as the basis for making an invention determine the process that is categorized as an invention.15 law number 13 of 2016 concerning patents article 4 has provided several limitations related to inventions that can be protected through simple patents, which states that inventions do not include aesthetic creations, schemes, rules and methods for carrying out activities that involve mental, game and business, rules and regulations. and a method that only contains a computer program, a presentation of data and discoveries in the form of novel applications for existing and/or recognized substances, as well as new products derived from existing compounds for which there is no substantial improvement in efficacy and known variations in chemical structure. the above limitations serve as guidelines in providing what kind of inventions can be protected through a simple patent protection system in indonesia. in addition, article 9 of the patent law inovasi, 12 jurnal surya kencana satu: dinamika masalah hukum dan keadilan 163–172 (2021). 15 republic of indonesia, law number 13 of 2016 concerning patents. state gazette of the republic of indonesia year 2016 number 176 (jakarta: sekretariat negara, 2016). http://journal.unnes.ac.id/sju/index.php/jils 308 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils additionally places restrictions on innovations that cannot be protected by a simple patent system, including:16 1. process or product whose announcement, use, or implementation is contrary to laws and regulations, religion, public order, or morality. 2. methods of examination, treatment, treatment and/or differentiation applied to humans and/or animals. 3. theories and methods in the fields of science and mathematics. 4. living things, except for micro-organisms; and 5. biological processes that are essential for the production of plants or animals, except for non-biological processes or microbiological processes. the limits that have been set as regulated in the patent law, therefore generally the invention of the sarung tenun goyor production process can be categorized as an invention that can be protected through a simple patent system in indonesia. the production process of the sarung tenun goyor is a process that is realized in the production of weaving using traditional atbm (nonmachine weaving equipment) technology. in addition, that the production process of the sarung tenun goyor is an invention that is not included in the category of prohibited or excluded inventions as regulated in law number 13 of 2016. a simple patent is an exclusive right that will be granted, if there is a request by the inventor to the authorized agency, in indonesia through the patent directorate, directorate of intellectual property, ministry of law and human rights.17 simple patent protection is offered for any new invention, development of an existing product or 16 id. 17 yoyon m. darusman, kedudukan serta perlindungan hukum bagi pemegang hak paten dalam kerangka hukum nasional indonesia dan hukum internasional, 5 yustisia jurnal hukum 203–215 (2016). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 309 available online at http://journal.unnes.ac.id/sju/index.php/jils method, and can be used in industry, according to law number 13 of 2016 concerning patents. simple patents are also granted for inventions in the form of new processes or methods.18 efforts to protect the legal protection of the sarung tenun goyor production process are reviewed based on the provisions of the simple patent object having been fulfilled as referred to in law number 13 of 2016 concerning patents. however, to provide legal protection for an invention, it does not only pay attention to the requirements for the object of the patent, but also to several substantive requirements that have been formulated in the patent law. substantive requirements are an important consideration before granting exclusive rights to someone. the substantive requirements as referred to above include requirements for novelty and industrial application. substantive requirements become important before a product or process is granted protection through the simple indonesian patent system. the substantive requirements are as described below:19 1. requirements for novelty novelty is a substantive requirement that has been stated in law number 13 of 2016 concerning patents, that an invention is considered new if the invention is not the same as the previously disclosed invention. this novelty requirement also looks at whether it has the same function as the previous invention. in this novelty element, novelty is considered to exist if the general public or the public are not aware of the existence of the patent. thus, this newness requirement relates to publication. 18 rinayah nasir, paten dalam proses produksi: tinjauan hak yang melekat pada inventor, 1 jurnal hukum positum 141–149 (2016). 19 endang purwaningsih, seri hukum kekayaan intelektual hukum paten (jakarta: cv. mandar maju, 2015). http://journal.unnes.ac.id/sju/index.php/jils 310 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils an invention is considered new if administratively at the date of receipt of the invention it is not the same as an existing invention.20 the invention has not been announced either in indonesia or outside indonesia, in writing, orally, through demonstration or in any other way that allows an expert to carry out the invention. however, the patent law contains many exceptions, including an invention that is not regarded to have been proclaimed if it was received at least 6 (six) months prior to the date of receipt: a) shown in an official exhibition both in indonesia and abroad. b) used in indonesia or abroad by the inventor for the purpose of experimentation with research/development purposes. c) announced by the inventor in a scientific meeting and/or scientific forum. article 6 paragraph (2) also stipulates that an invention is not deemed to have been published if a maximum of 12 months there are parties who announce their invention in violation of the law. article 6 paragraph (2) of the patent law no. 13 of 2016, namely:21 "an invention is also not considered to have been revealed if another party reveals it within 12 (twelve) months after receipt by breaking the responsibility to keep the invention private”. based on the foregoing, it can be inferred that the requirements for novelty must satisfy a number of factors, such as elements of function, series of processes, and elements of publication. the production process of the sarung tenun goyor based on the above elements in its protection encountered obstacles from the administrative side. this is because the production process of the 20 hanxin lin and cheryl xiaoning long, do discretion criteria for patent administrative law enforcement encourage innovation among firms?, 1 china economic quarterly international 160175 (2021). 21 republic of indonesia, law number 13 of 2016 concerning patents. state gazette of the republic of indonesia year 2016 number 176 (jakarta: sekretariat negara, 2016). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 311 available online at http://journal.unnes.ac.id/sju/index.php/jils sarung tenun goyor has characteristics as a process that has been passed down from generation to generation, therefore it becomes an obstacle in terms of the publication of the invention. the production process of the sarung tenun goyor which has been practiced for generations, for decades and has become public knowledge for the community, especially in pemalang regency, thus cannot fulfill the provisions of the element of novelty as regulated article 6 paragraph 1 of the law no. 13 of 2016 on patents. based on this analysis, the element of novelty in the production process of the sarung tenun goyor in pemalang is not fulfilled in a simple patent. 2. industrial step the second substantive requirement for an invention to be granted patent protection is simple, namely the fulfillment of conditions that can be applied in industry. article 8 of law no. 13 of 2016 on patents states that an innovation can be used in industry if it can be implemented in industry as detailed in a simple patent application. furthermore, djaja22 indicates that a conditional innovation can be used in the industry if the patent is in the form of a product that can be mass-produced in huge amounts while maintaining the same quality. meanwhile, if the invention is a process, it must be able to be operated or employed in practice. theoretically, the production process of the sarung tenun goyor in pemalang can be practiced or applied in industry and can produce the sarung tenun goyor with the same quality. however, what should be noted is that the production process of the sarung tenun goyor has been there for generations. on the other hand, along with the times, the production process of the sarung tenun goyor in pemalang has 22 djaja, supra note 1. http://journal.unnes.ac.id/sju/index.php/jils 312 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils undergone innovation and development from the sarung tenun goyor industry players. based on the findings of the aforementioned investigation and analysis, the sarung tenun goyor production process may be classified as an invention and can be categorized as an object of protection from a simple patent. it can be said that theoretically, the invention of the sarung tenun goyor production process fulfills the element as an object of simple patent protection, but in terms of the substantive requirements of simple patent protection it is still hindered by the existence of new requirements in the invention of the sarung tenun goyor production process. the principle of legal protection given to intellectual property as an intangible asset for micro, small and medium enterprises (msmes) is a form of guarantee for the right owner to be able to enjoy economically the results of an intellectual creativity and to prevent disputes in the future.23 an invention in order to obtain simple patent protection must at least meet several substantive requirements as regulated in article 2 paragraph (1) of the law. no. 13 of 2016 namely; the invention must contain an element of novelty, can be applied in industry (industrial applicability) and also meet the formal requirements as stipulated in article 24 of the law. no. 13 of 2016.24 based on the analysis of the protection of the sarung tenun goyor production process, it was studied based on the requirements for a simple patent object and the substantive requirements for a simple patent registration, there are obstacles in meeting the novelty element. this is because the production process of the sarung tenun goyor is a 23 inayah, supra note 2. 24 m. prabodh, s. ashish, r. suthakaran, and k. abhijit, indonesian patent system: an overview, 2 international journal of drug regulatory affairs 26–30 (2014). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 313 available online at http://journal.unnes.ac.id/sju/index.php/jils form of invention that has been passed down from generation to generation and has been known to the public. the production process is the most important part in the industry, the production process realizes solving certain problems through work and processing techniques effectively and efficiently in order to produce products that comply with the specified quality.25 the raw materials used in the production of sarung tenun goyors include warp yarn, weft yarn and dyes. the production process of the sarung tenun goyor as described above is a problem solving process using an industry to produce a product and the above process has been around for generations. whereas in order to fulfill the patentability requirements, namely the requirements for novelty and industrial application, as in the analysis in the previous sub-chapter, the invention of the sarung tenun goyor production process has obstacles in terms of novelty elements.26 therefore, to fulfill the novelty element, the existing production process can be developed. the form of the development of the sarung tenun goyor production process into a new invention will later be analyzed using a simple patent system: a) renewal terms. based on the provisions of the new requirements, the development of the sarung tenun goyor production process has complied with this provision. the developments carried out include the dyeing process which is combined with the yarn spinning process which is made and adapted to the current development of bg45v technology and to increase production effectiveness. in addition, that in terms of publications, the development of the sarung tenun goyor production process fulfills the element of novelty because there has been no announcement regarding this matter. 25 nasir, supra note 15. 26 ribowo and raisah, supra note 8. http://journal.unnes.ac.id/sju/index.php/jils 314 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils b) applicable in industry. the production process of the sarung tenun goyor can be applied in industry. the process can still be used in the activity of producing sarung tenun goyors and the production remains the same. thus, the conditions that can be applied in the industry can be fulfilled. based on a simple patent system, an invention is not always required to be a completely original new technology, but also a new technology which is a development of the previous technology. even though it is only in the form of invention development, basically protection can still be given to inventors as a form of appreciation because making a form of intellectual property is not an easy thing. the creation still requires the sacrifice of time, energy, cost, and human intellectual thought in the process. a simple patent is different from a patent. a simple patent is a patent that does not require in-depth research or development and contains only one claim.27 however, implicitly there are other types of patents, namely process patents and product patents. a process patent is a patent granted to a process, while a product patent is a patent granted to a product. there are characteristics that distinguish between patents and simple patents. the development of the sarung tenun goyor production process became the object of a simple patent in the form of a simple process patent. similar to indonesia, malaysia distinguishes between patent protection and simple patents. patent protection in malaysia is governed by the patents act 1983 (hereinafter as pa) and the patents regulations 1986 (hereinafter as pr). these statutes, which came into force on 1st october 1986, marked the beginning of an independent 27 g. dutfield, collective invention and patent law individualism: origins and functions of the inventor’s right of attribution, 5 the wipo journal 25–34 (2013). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 315 available online at http://journal.unnes.ac.id/sju/index.php/jils patent registration system for malaysia.28 prior to 1st october 1986, to obtain patent protection in malaysia, one needed to secure a patent registration in the united kingdom (uk) and subsequently re-register the same in malaysia. the re-registration would provide the registrant in malaysia the same privileges and rights as that conferred in the uk as if the patent had been granted in malaysia. the earlier system of re-registration of uk patents has since been repealed. the pa and the pr are administered by the intellectual property corporation of malaysia (corporation). the corporation, also known as myipo, is an agency under the jurisdiction of the ministry of domestic trade, cooperative and consumerism which is responsible for the development and management of the intellectual property (ip) system in malaysia. the pa defines utility innovation as any innovation which creates a new product or process, or any new improvement of a known product or process which is capable of industrial application and includes an invention. it generally does not display a high degree of inventiveness in comparison to an invention qualifying for a patent. this is in line with the simple patent arrangement for the development of existing products or processes in indonesia. developments carried out on existing inventions can be carried out by industrial owners or craftsmen themselves. law number 13 of 2016 has provided legal certainty for the development of inventions carried out in an employment relationship. unless otherwise agreed, the patent holder of the invention generated by the inventor in an employment relationship is the party supplying the work, according to article 12 of the patent law. based on the study's findings, 28 angayar kanni ramaiah, innovation, intellectual property rights and competition law in malaysia, 14 south east asia journal of contemporary business, economics and law 60-69 (2017). http://journal.unnes.ac.id/sju/index.php/jils 316 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils information was obtained that only the sarung tenun goyor industry of nur jamil made a written agreement and through interviews it was obtained information that in the industry there was indeed a written agreement made between the owner of the industry and the craftsman. however, that the written agreement made did not contain a clause related to the development of the invention of the sarung tenun goyor production process carried out by the craftsmen. therefore, based on the provisions of article 12, those who are entitled to become patent holders are industrial owners as employers. these provisions apply to inventions produced by using available data/or facilities in their work. the inventor, however, continues to be compensated depending on the agreement reached between the employer and the inventor, which takes into consideration the economic benefits received from the existing innovation.29 determining the fulfillment of the elements in a simple patent object is not the last thing that needs attention. however, the author analyzes the emergence of other problems behind it regarding the values of justice, social, and propriety that need to be considered. the problem is related to the development status of the sarung tenun goyor production process invention which was originally a communal intellectual property. the production process of the sarung tenun goyor is an intellectual work that develops prior art and is used as a commercial advantage, there should be a benefit sharing mechanism from the floating industry to the community as a form of good faith and as an appreciation of prior art culture. the procedure is outlined in article 26 paragraph 1 of law no. 13 of 2016, namely:30 "if the invention is related to and/or derives from genetic resources and/or 29 indi fandaya et al., pertanggungjawaban pemegang lisensi wajib menurut undangundang nomor 14 tahun 2001 tentang paten, 5 usu law journal 10–21 (2017). 30 republic of indonesia, law number 13 of 2016 concerning patents. state gazette of the republic of indonesia year 2016 number 176 (jakarta: sekretariat negara, 2016). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 317 available online at http://journal.unnes.ac.id/sju/index.php/jils traditional knowledge, the origin of the genetic resources and/or traditional knowledge must be disclosed clearly and properly in the description". the purpose of indicating the origin of genetic resources and/or traditional knowledge in the description, according to the article above, is to ensure that genetic resources and/or traditional knowledge are not recognized by other nations and to encourage access benefit sharing (abs). this is in line with what was expressed by moh. hawary through interviews.31 the department of cooperatives, msmes, industry and trade of pemalang regency supports and facilitates the sarung tenun goyor industry in protecting its simple patents. information on genetic resources and/or traditional knowledge is determined by an official institution recognized by the government or by issuing a statement of truth and clarity of origin of traditional knowledge, according to regulation of the minister of law and human rights number 38 of 2018 concerning patent applications, which is amended by regulation of the minister of law and human rights number 13 of 2021.32 traditional knowledge in article 1 point 3 of the regulation of the minister of law and human rights number 13 of 2017 concerning communal intellectual property data, namely:33 "intellectual works in the field of knowledge and technology that contain elements of traditional heritage 31 interview with moh. hawary, head of intellectual property sub-section, regional office of the ministry of law and human rights, central java. interview on 2 december 2020. 32 republic of indonesia, regulation of the minister of law and human rights number 38 of 2018 jo regulation of the minister of law and human rights number 13 of 2021 concerning patent applications state gazette of 2021 number 106 (jakarta: sekretariat negara, 2021). 33 republic of indonesia, regulation of the minister of law and human rights number 13 of 2017 concerning communal intellectual property data, state gazette of 2017 number 964 (jakarta: sekretariat negara, 2017). http://journal.unnes.ac.id/sju/index.php/jils 318 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils characteristics that are produced, developed, and maintained by a particular community or society". the application of the benefit sharing mechanism is a form of respect for the moral rights of the prior art owner community.34 this is because in practice the production process of sarung tenun goyors has been applied from generation to generation in north wanarejan village. because the production process of the sarung tenun goyor is considered a prior art which is considered the culture of pemalang regency and indonesia, the local government has the right to represent the community. the analysis above is intended to guarantee the legal certainty obtained for the development of the sarung tenun goyor production process in accordance with patent law no. 13 of 2016. gustav radbruch stated that legal certainty guarantees legal justice and stated that the law must remain useful. this is in line with the theory of legal certainty presented by lili rasjidi which states that the value of legal certainty is a value that in principle provides legal protection for every citizen. legal certainty in this study is needed to determine whether the development of the sarung tenun goyor production process is guaranteed protection from the indonesian simple patent system or not. according to lili rasjidi's theory of legal certainty, as explained above, in terms of the provisions for recording an invention, if it is related to the theory of legal certainty, law number 13 of 2016 concerning patents in principle provides guarantees and certainty for the development of inventions that can be protected by the system. simple patent. this is due to the fact that a simple patent does not necessitate the development of a new technology. in addition, that simple patent derived from traditional knowledge will 34 dewi sulistianingsih, perdebatan pengetahuan tradisional dalam kekayaan intelektual (yogyakarta: pohon cahaya, 2016). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 319 available online at http://journal.unnes.ac.id/sju/index.php/jils get access benefit sharing (abs).35 registration for the sarung tenun goyor invention does not ignore the values of justice or social values that exist in society. this is because the law has already controlled and decided that, as stated in article 26 of law no. 13 of 2016 on patents, which has regulated and provided legal protection for basic patent registrations based on conventional knowledge. the legal protection of the sarung tenun goyor production process can be a reference for the government on how to seek protection of communal intellectual property. protection of the sarung tenun goyor production process through the intellectual property regime, especially simple patents, will be less effective. this is because a simple patent specifies certain conditions that protection through a simple patent regime recognizes a time limit of protection, with the expiration of the existing protection period, the invention becomes the public domain.36 meanwhile, the production process of the sarung tenun goyor as a communal intellectual property must remain and be protected forever as a form of characteristic of the indonesian nation. duffield37 legal certainty that there is legal protection for the production process of goyor weaving gloves in pemalang, there are three forms of protection that can be done, namely utilizing preexisting regulations, modifying or making additional/complementary rules and developing regulations that are sui generis. termologically, that sui generis comes from latin which means special. intellectual property regimes refer to specific forms of protection beyond existing 35 miqdad abdullah siddiq, dilema komersialisasi pengetahuan tradisional dalam sistem hukum indonesia: antara perlindungan dan pembagian manfaat, 48 jurnal hukum dan pembangunan 164–180 (2018). 36 waspiah waspiah, rodiyah rodiyah, dian latifiani, and dede alvin setiaji, advanced training of intellectual property documents of industrial desaign for goyor sarung craftsman in pemalang district, 1 indonesian journal of advocacy and legal services 169–192 (2019). 37 dutfield, supra note 27. http://journal.unnes.ac.id/sju/index.php/jils 320 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils forms of protection. this can also be seen as the formation of a special regime to meet certain needs.38 legal protection of simple patent of indonesia & malaysia (a case of sarung tenun goyor pemalang protection & malaysia utility innovation protection) intellectual property protection is an important legal requirement that the state must meet in order to safeguard copyrighted works generated by humans using their intelligence. intellectual property has an important role in the economic development of a country. legal protection is given as a guarantee for the protection of intellectual property owned and the fulfillment of economic rights that can be enjoyed by the rights owner.39 because wealth or assets created by human intellect or intelligence have economic worth or provide advantages to human existence, intellectual property has economic value. works that are born or produced on human intellectual abilities either through outpouring of energy, thought and creativity, taste and intention should be protected by a legal protection system for such property known as the intellectual property rights (ipr) system. intellectual property has a role not only as a form of legality and an intensive system for creators of works. however, more than that, intellectual property is an instrument that can be used as a tool to 38 gangfeng wang, extraction of principle knowledge from process patents for manufacturing process innovation, 56 procedia cirp journal 193–198 (2016). 39 k. hidayah, hukum hak kekayaan intelektual (malang: setara press, 2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 321 available online at http://journal.unnes.ac.id/sju/index.php/jils protect intellectual property assets that can be used as a tool for market monopoly, as a tool to generate innovation, and as a system used to prevent possible intellectual property infringement.40 intellectual property cannot be separated from economic activities, such as industry and trade. the key to surviving in a trade is mastery of inventions and the ability to constantly innovate. there are 3 (three) interactions contained in intellectual property, namely intellectual property itself, its commercialization and aspects of legal protection.41 the commercialization aspect is important, because intellectual property will be commercialized into works that can be used by humans and as a result of the commercialization of this intellectual property, then the aspect of state legal protection is present to protect the interests of rights owners to be able to enjoy the benefits obtained through the commercialization of intellectual property.42 intellectual property is classified by the world intellectual property organization (wipo) into numerous categories, including copyrights, brand rights, patents, industrial designs, integrated industrial layout designs, trade secrets and protection of plant varieties.43 patents are an interesting type of intellectual property, because human life and economic activities are always related to technology. patents are not confined to a specific problem-solving 40 salsabila khairunnisa, patent legal protection on invention (comparation study between indonesia and japan), 9 jurnal hukum novelty 183–191 (2018). 41 dwi tiara kurnilasari, annalisa yahanan, and rohani abdul rahim, protection of traditional knowledge: a perspective on intellectual property law in indonesia, 2 sriwijaya law review 110–130 (2018). 42 mutia denti armala zuami and bakti tresnawati, perlindungan hukum terhadap pemegang hak paten akibat dihapusnya kepemilikan hak paten dari daftar umum paten, 1 jurnal juristic 95–106 (2020). 43 jane e. anderson, indigenous knowledge and intellectual property rights, 2 international encyclopedia of the social & behavioral sciences 769-778 (2015). http://journal.unnes.ac.id/sju/index.php/jils 322 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils activity in the sphere of technology in the form of goods or product development, according to article 1 number 2 of law number 13 of 2016.44 however, an invention may also be defined as a specific problem-solving activity in the realm of technology that takes the shape of a process, or the improvement and development of a process. patents are a type of intellectual property right that is included in the category of industrial property rights in this framework (industrial property rights). intellectual property rights are intangible items that are part of objects (immaterial objects). the legal definition of an object is anything that can be the subject of a legal claim. in the meanwhile, not only tangible but also immaterial items can become objects of rights.45 this research examines the production process of the sarung tenun goyor and its legal protection aspects. the sarung tenun goyor is one of the traditional fabrics, this is because the method of making it itself is purely using traditional technology called atbm (nonmachine weaving equipment). the sarung tenun goyor has become a distinctive cloth owned by the pemalang regency area. the sarung tenun goyor is one of the ikat weavings, because the manufacturing process goes through the binding stage on the threads. tenun ikat is a thread that is tied so that the color of the thread that is tied does not absorb the color, but the part that is not tied absorbs the dyed color. the manufacture of sarung tenun goyors includes a series of processes used in production. the process is in response to solving technical problems in production. the sarung tenun goyor is one of the traditional types of fabric that is the identity and superior product of pemalang regency. the sarung tenun goyor in the production process 44 republic of indonesia, law number 13 of 2016 concerning patents. state gazette of the republic of indonesia year 2016 number 176 (jakarta: sekretariat negara, 2016). 45 nasrullah nasrullah, protection of patent rights (comparative studies in japan and indonesia, 3 journal of private and commercial law 66–70 (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 323 available online at http://journal.unnes.ac.id/sju/index.php/jils requires 14 (fourteen) steps that need to be carried out to produce one sarong for one to two weeks. sarung tenun goyors are produced using traditional technology in the form of non-machine weaving equipment (atbm). the production process of the sarung tenun goyor has existed and has been applied from generation to generation. based on the above argument, it may be determined that the sarung tenun goyor's manufacturing method is a form of intellectual property. this was also confirmed through an interview by moh. hawary dahlan as head of sub division of intellectual property services regional office of the ministry of law and human rights central java. the principle of simple patent protection is the same as other ipr protections as long as the overall aim is to protect someone who finds something so that his ideas and work are not used for granted by others and enjoy the results which are the result of their hard work, thought and expense. to get it.46 when compared between copyright and patent, the difference between the two is that copyright is recognized by law in principle from the beginning, and the law only regulates its protection. while patent protection must be done through a registration. patent law enforcement has not had a significant impact on the number of registered patent applications in indonesia. this is because the patent law has not been used effectively by both public and private researchers, as well as entrepreneurs in indonesia. therefore, the patent law cannot be used as a driving force for national economic development.47 the legal protection given to inventions not only pays attention to the fulfillment of the elements of the patent object, but also analyzes the patent subject in an invention. article 1 paragraph (1) of law no. 13 of 2016 concerning patents regulates the idea of patent ownership of an invention, it indicates that the state grants patents to inventors 46 ribowo and raisah, supra note 8. 47 sulistianingsih, supra note 34. http://journal.unnes.ac.id/sju/index.php/jils 324 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils for their technological innovations for a set amount of time to carry out the invention themselves or obtain clearance from another party to do so. patent rights are awarded to inventors, and inventors who use their rights are known as patent subjects, according to article 1 paragraph (1) of the patent law. the subject of patents is also regulated in patents (article 10) of the law no. 13 of 2016, which provides a stipulation that patents are not only granted to inventors, but also to people who further receive the rights of the inventor concerned through a license. in addition, it is explained that inventors are not only produced individually, but can be produced jointly and can be realized from working relationships. the existence of the sarung tenun goyor pemalang production process which has been practiced by the community for decades has caused a "vague" understanding of who the inventor of the invention of the sarung tenun goyor is. article 10 paragraph (2) of law number 13 of 2016, has stated that patent control can be owned collectively, this is in line with the invention of the sarung tenun goyor production process that has been applied by the people of north wanarejan village or in other areas that have a weaving process that similar. the production process of goyor tenun gloves in pemalang has been practiced by several industries of sarung tenun goyors in north wanarejan village as well as several other areas which have similar production processes which are essentially state owned inventions. however, patent law no. 13 of 2016 is a law that regulates the use of patents does not regulate and determine the concept of simple patent control by the state. in law number 13 of 2016, the state is not present http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 325 available online at http://journal.unnes.ac.id/sju/index.php/jils as a right holder, but as a party that gives exclusive rights to inventors.48 based on the analysis above, the production process of sarung tenun goyor has met the requirements as a simple object of patent protection, therefore providing protection for the work of human intellectuality is an important thing that needs to be considered. the importance of legal protection for the production process of sarung tenun goyor which is a form of intellectual property that has been created through human intellectual abilities in it against moral rights and economic rights which are the rights of the inventor. in the theory of george wilhelm friedrich hegel, the philosophy of intellectual property protection is as follows in personality theory states that when a person has generated an idea and put his thoughts into a copyrighted work, then the property rights are automatically attached to him. personality theory emphasizes that absolute legal protection is given to all forms of creation or findings or inventions produced, not still contained in wishful thinking or pictures. therefore, intellectual property rights will forever be attached to the creator, this is what is called a moral right. based on this theory, the production process of the sarung tenun goyor is a real work born of human intellectual abilities and is realized to answer logical problem solving. therefore, in the invention there are moral rights which are the rights of the inventor and can only be obtained when the invention is protected by a simple patent system in indonesia through a simple patent registration process. the utilatarian theory put forward by jeremy betham also supports the legal protection of all forms of intellectual property. utilitarian thory explains that the law is formed to provide benefits 48 seokbeom kwon and alan c. marco, can antitrust law enforcement spur innovation? antitrust regulation of patent consolidation and its impact on follow-on innovations, 50 research policy 104295 (2021). http://journal.unnes.ac.id/sju/index.php/jils 326 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils and happiness for society.49 legal protection based on utilitarian theory tries to provide legal protection for human intellectual works rationally. that legal protection is given to objects that have been painstakingly produced using their intellectual abilities. that the existence of legal protection as referred to is in the context of providing guarantees for intellectual works on the economic rights they have. the existence of legal protection for the resulting intellectual property can later provide benefits to the wider community. the production process of the sarung tenun goyor which consists of twenty-two steps that need to be carried out to realize a good quality sarung tenun goyor has certainly gone through a process of deep human thought and painstaking to answer the problem of how to make a sarung tenun goyor using traditional technology of nonmachine weaving equipment (atbm). the existence of this legal protection is a form of guarantee given to the owner of the right to enjoy the rights contained in an invention, one of which is economic rights. according to the author, in principle the two theories above provide impetus that the production process of the sarung tenun goyor which has been realized through human intellectual abilities and painstakingly costs money, time, energy and thought to be able to produce intellectual works has the right to be protected by law. the legal protection is intended to provide guarantees for the right owner to be able to enjoy the rights inherent in it. economic and moral rights that an inventor may have in exchange for the invention he creates. the utilatarian theory which emphasizes legal protection so that inventors can enjoy their economic rights is in line with article 12 paragraph (3) of law number 13 of 2016 concerning patents. 49 malikovna, supra note 3. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 327 available online at http://journal.unnes.ac.id/sju/index.php/jils the importance of legal protection for intellectual property is carried out to ensure the realization of the principles contained in intellectual property. these principles include the following:50 a) the principle of natural justice. the work produced by the creator for the result of his intellectual ability deserves to be rewarded both in the form of material and non-material, such as protection for him so that it creates a sense of security. the law provides protection to creators in the form of freedom of rights in using their exclusive rights. b) principles of economics (the economic argument). intellectual property that is generated for intellectual abilities in various types and forms has useful values and economic values and is useful for human life. the economic value contained in intellectual property is wealth for the owner. c) principles of culture (the cultural argument). recognition of works, creations and copyrights produced on human abilities in order to provide benefits for humans and realize the development of science, art, and literature in the intellectual property rights system is recognized and protected in the hope of being able to encourage new innovations. d) social principles (the social argument). in providing protection for works produced on intellectual abilities, the intellectual property rights system does not only pay attention to the interests of certain individuals or associations, but also pays attention to the balance between individual and community interests. the connection with simple patent protection derived from traditional knowledge is balancing the interests of the community and individuals through access 50 sulistianingsih, supra note 34. http://journal.unnes.ac.id/sju/index.php/jils 328 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils benefit sharing as regulated in law number 13 of 2016 concerning patents. this principle is intended to provide protection for inventors. utility innovation in malaysia is meant to protect local industries. research has revealed that ui protection promotes certain local industries by offering rapid and inexpensive intellectual property protection. ui provides protection against massive copying and limitations, especially if the protection for such copying is not available through unfair competition laws. incremental innovations can be encouraged by ui and those breakthrough innovations such as those in the biotechnology and pharmaceutical industry can be protected by ways of patents rights. if it is related to the case study of this research, the arrangements made by the two countries, between indonesia and malaysia, have similarities. below is the comparison between the simple patents (indonesia) and utility innovations (malaysia) as shown on table 1. table 1. comparison of simple patents indonesia & utility innovation malaysia no simple patents (indonesia) utility innovation (malaysia) 1 requirements: novelty and industrially applicable requirements: novel and industrially applicable 2 only one claim only one claim 3 10 years (from the date of receipt of a simple patent application) and cannot be extended the term of protection is 10 years from the date of filing and can be extended 5 + 5 years subject to evidence of use submitted to the ip office source: comparison of law no. 13 of 2016 (indonesia) and the patent act, 1983 (malaysia)51 51 government of malaysia, patent act 1983, (malaysia, 1983). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 329 available online at http://journal.unnes.ac.id/sju/index.php/jils based on the table above, there are similarities and differences in simple patent protection in indonesia and malaysia. the above provisions are intended to make it easier for local industries to register their patents. sarung tenun goyor is one of the superior products of pemalang regency, and even has one sarung tenun goyor center village, namely north wanarejan village. the sarung tenun goyor is indeed synonymous with pemalang regency. therefore, the efforts of the pemalang regency government in providing legal protection to intellectual property contained in sarung tenun goyors, especially the simple patent process, are very important. normatively, legal protection of the production process is not regulated sui generis in relation to simple patents derived from traditional intellectual property. this has been addressed in article 26 of law no. 13 of 2016 on patents, which provides protection for simple patents based on traditional knowledge. the sarung tenun goyor production process is conceptually an invention that is realized in a tangible form through a weaving production process using traditional atbm (non-machine weaving equipment) technology. in addition, that the production process of sarung tenun goyor is an invention that is not included in the category of prohibited or excluded inventions as governed by law no. 13 of 2016. another attempt by the government of the republic of indonesia is the issue of a minister of law and human rights regulation no. 13 of 2017 addressing intellectual property data as a kind of defensive legal protection. in addition, that the production process of the sarung tenun goyor has substantially fulfilled the elements that can be applied in industry. in addition to economic motives, that the existence of this legal protection can increase the reputation of the sarung tenun goyor with its quality and characteristics. all efforts performed intentionally by individuals, governments, and private entities to secure, exploit, and fulfill the welfare of life in http://journal.unnes.ac.id/sju/index.php/jils 330 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils conformity with established human rights are referred to as legal protection. legal protection is the provision of legal remedies by law enforcement officials to protect human rights that have been violated by others, and this protection is provided to the community so that they can enjoy all of the rights granted by law. in other words, legal protection is the provision of various legal remedies by law enforcement officials to provide legal protection to the community.52 a feeling of safety, both physically and psychologically, from any disruptions or threats. with regard to intellectual property, it indicates that the law protects the creator's or inventor's inherent rights in the creative work created. the pemalang regency government has never initiated the registration of the sarung tenun goyor production process under a simple patent regime, as well as the sarung tenun goyor industry owners who have not taken any legal protection measures against this process patent. anang faifin revealed that the regional government only provides protection when interested parties want to register and then the regional government provides assistance in the registration process.53 meanwhile, the ministry of law and human rights in central java has made defensive and preventive protection efforts. defensive legal protection efforts are carried out by collaborating with relevant agencies in the central java region to collect data on traditional knowledge owned by the region and preventive measures are carried out by providing services and assisting in the intellectual property registration process. the following are some inventions 52 ilayda nemlioglu, a comparative analysis of intellectual property rights: a case of developed versus developing countries, 158 procedia computer science 988–998 (2019). 53 interview with anang arifin, head of sub division of cooperatives, department of cooperatives, industry and trade, pemalang regency. interview on 5 december 2020. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 331 available online at http://journal.unnes.ac.id/sju/index.php/jils registered through simple patents carried out by msmes derived from traditional knowledge as shown on table 2. table 2. simple patent msmes invention data no. invention inventor year of protection 1 the process of making fractal batik motifs yun hariadi, nancy margried p 2010-2020 2 color-coletting equipment for dyeing stamped and handdrawn batik motif fabrics eni efendri 2010-2020 3 yarn winding machine (winding) for non-machine weaving equipment (atbm) triyanto 2013-2023 4 development of cocoa cassava chips processing method sutarno rifai 2016-2026 5 ringkel background batik fabric dyeing tika sulistyaningsih, anugrah ariesahad wibowo, irianti nugrahani, sugiyanto 2018-2028 6 obong batik making lugiyantoro 2018-2028 7 ringkel background batik fabric dyeing tika sulistyaningsih, anugrah ariesahad wibowo, irianti nugrahani, sugiyanto 2018-2028 8 instant rice production process irna herdiana, citra khaerani 2018-2028 source: the intellectual property database54 the table 2 shows the legal protection efforts carried out by msmes in protecting their processes or products in a simple patent regime. meanwhile, the legal protection efforts given to the 54 ministry of law and human rights directorate general of intellectual property, “intellectual property database,” 2021, reterived from <https://pdkiindonesia.dgip.go.id/index.php/paten?q=paten+simple&type=1>. http://journal.unnes.ac.id/sju/index.php/jils 332 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils production process of the sarung tenun goyor based on the above discussion are still experiencing obstacles in terms of the legal structure. the government of the republic of indonesia has issued legal instruments used to protect simple patents derived from traditional knowledge and their implementing regulations. however, it will not run optimally without the role of related institutions or legal structures. ministry of law and human rights of central java through an interview with moh. hawary stated that the ministry of law and human rights of central java has coordinated and cooperated with related agencies in districts/cities in central java to protect intellectual property owned by the region.55 however, the department of cooperatives, msmes, industry and trade of pemalang regency is less than optimal. in addition, based on the findings of the study, it can be concluded that legal culture factors also influence the less than optimal protection of the sarung tenun goyor production process. industry players do not know whether a work contains intellectual property potential. in addition, that industry players still think that the production process used does not matter if it is used by someone else without approval. intellectual property, according to robert m. sherwood, is a tool for a region's economic development. on that basis, the regional government should take a role in initiating legal protection against the invention of the sarung tenun goyor production process. 55 interview with moh. hawary, head of intellectual property sub-section, regional office of the ministry of law and human rights, central java. interview on 2 december 2020. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 333 available online at http://journal.unnes.ac.id/sju/index.php/jils conlusion this research concluded and highlighted that the production process of the sarung tenun goyor is a form of intellectual property and can be protected through a simple patent regime in the form of a process. however, the protection process will experience obstacles in fulfilling substantive requirements in the form of new requirements. the development of the sarung tenun goyor production process has legal status in patent law no. 13 of 2016. whereas the provisions on simple patent protection have similarities and differences with the simple patent arrangement in malaysia. the development carried out on the production process of the sarung tenun goyor as an effort to meet the requirements of novelty. article 26 of the law no. 13 of 2016 on patents provides certainty of legal protection for inventions derived from traditional knowledge to be protected through a simple patent regime. legal protection for simple patents derived from traditional knowledge does not ignore the value of justice or social values in society, but the patent law guarantees this. simple patent legal protection derived from traditional knowledge must still be explained in the description that the invention is a development of traditional knowledge to fulfill access benefit sharing (abs). references abdulkadir, muhammad. kajian hukum ekonomi hak kekayaan intelektual. 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(jakarta: sekretariat negara, 2016). republic of indonesia. regulation of the minister of law and human rights number 13 of 2017 concerning communal intellectual property data, state gazette of 2017 number 964. jakarta: sekretariat negara, 2017. republic of indonesia. regulation of the minister of law and human rights number 38 of 2018 jo regulation of the minister of law and human rights number 13 of 2021 concerning patent applications state gazette of 2021 number 106. (jakarta: sekretariat negara, 2021). ribowo, mochammad bambang, and kholis raisah. “perlindungan hukum terhadap paten sederhana dalam sistem hukum paten di indonesia (studi komparasi dengan sistem hukum paten negara china).” notarius 12, no. 1 (2019): 42–60. https://doi.org/10.14710/nts.v12i1.23761. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/jpcl.v3i2.19744 http://dx.doi.org/10.32493/jdmhkdmhk.v12i2.15865 jils (journal of indonesian legal studies) volume 7(1) 2022 337 available online at http://journal.unnes.ac.id/sju/index.php/jils siddiq, miqdad abdullah. “dilema komersialisasi pengetahuan tradisional dalam sistem hukum indonesia: antara perlindungan dan pembagian manfaat.” jurnal hukum dan pembangunan 48, no. 1 (2018): 164–180. http://dx.doi.org/10.21143/.vol48.no1.1600. sulistianingsih, dewi. perdebatan pengetahuan tradisional dalam kekayaan intelektual. (yogyakarta: pohon cahaya, 2016). wang, gangfeng. “extraction of principle knowledge from process patents for manufacturing process innovation.” procedia cirp journal 56 (2016): 193–198. https://doi.org/10.1016/j.procir.2016.10.053. waspiah, waspiah. “model percepatan komersialisasi paten sederhana pada dunia industri.” pandecta research law journal 12, no. 2 (2017): 86–105. https://doi.org/10.15294/pandecta.v12i2.7491. waspiah, waspiah, rodiyah rodiyah, dian latifiani, and dede alvin setiaji. “advanced training of intellectual property documents of industrial desaign for goyor sarung craftsman in pemalang district.” indonesian journal of advocacy and legal services 1, no. 2 (2019): 169–192. https://doi.org/10.15294/ijals.v1i2.33961. zuami, mutia denti armala, and bakti tresnawati. “perlindungan hukum terhadap pemegang hak paten akibat dihapusnya kepemilikan hak paten dari daftar umum paten.” jurnal juristic 1, no. 1 (2020): 95–106. http://jurnal.untagsmg.ac.id/index.php/jrs/article/view/1486. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/pandecta.v12i2.7491 338 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils the inventive step requirement makes a lawyer out of an inventor kalyan c. kankanala fun ip, fundamentals of intellectual property about authors rohmat, s.h., is a researcher at the supreme court of the republic of indonesia. he is a graduate of law degree from universitas negeri semarang in 2021. some of his works have been published, such as “position of belief in the status of freedom of religion and belief based on the international law, national law, and islamic law (proceedings atlantis press, 2018)” and “kajian hukum pidana indonesia atas penyalahgunaan alat bukti visum et repertum sebagai sarana untuk melakukan tindak pidana pemerasan (mimbar keadilan journal, 2020)". waspiah, s.h., m.h., is a lecturer at the department of private and commerial law faculty of law, universitas negeri semarang with expertise in insurance and intellectual property rights. currently, she is pursuing a doctoral education at the doctor of law program at diponegoro university, semarang indonesia. active in the publication of scientific articles published by atlantis press entitled "the acceleration of simple patent: how we optimize technology on indonesian intellectual and property rights law (study on central java, indonesia)". david chuah cee wei is a student second year of the faculty of law, universiti kebangsaan malaysia. he has experience in leading variety organizations and clubs in university level. he also has been awarded with best presenter of business modal canvas in competition which related to the circumstances of company law and intellectual property rights towards the goods protection and company policy drafting. http://journal.unnes.ac.id/sju/index.php/jils https://www.goodreads.com/work/quotes/24076699 https://www.atlantis-press.com/article/25903181.pdf https://www.atlantis-press.com/article/25903181.pdf https://scholar.google.com/citations?view_op=view_citation&hl=id&user=1vwqhhiaaaaj&citation_for_view=1vwqhhiaaaaj:nmxildl6lwmc https://scholar.google.com/citations?view_op=view_citation&hl=id&user=1vwqhhiaaaaj&citation_for_view=1vwqhhiaaaaj:nmxildl6lwmc jils (journal of indonesian legal studies) volume 7(1) 2022 391 available online at http://journal.unnes.ac.id/sju/index.php/jils book review controversial ideas about the state and revolution, a book review “the state and revolution” vladimir ilyich lenin, haymarket books chicago, 2014, 210 pages, isbn: 978-1-60846-498-2 nur rohim yunus gosudarstvennyy universitet upravleniya (guu) moscow, russia  nurrohimyunus@yandex.ru submitted: feb 18, 2022 revised: april 11, 2022 accepted: may 30, 2022 abstract the state and revolution is a book that was born from lenin's life experience as the father of russian revolutionaries. the movement that gave birth to major changes in the future of russia and the formation of a soviet state with marxism-leninism. in his book, a discourse of justice and legal protection in domestic and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 7 issue 1, june 2022 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils http://orcid.org/0000-0003-2782-1266 392 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils vladimir lenin divides the discussion into six chapters, each of which is divided into several sub-chapters. the method of writing the book uses a descriptive analysis pattern with a contextual approach. in fact, this book has a positive contribution to anti-bourgeois supporters, because of its ideas against bourgeoisie and western capitalism. but this book is a negative ghost, for lovers of freedom and democracy. because the true teachings of leninism require authoritarianism and the absence of freedom for its citizens. keywords: state, revolutions, marxism-leninism 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. how to cite: yunus, nur rohim. “controversial ideas about the state and revolution, a book review “the state and revolution” vladimir ilyich lenin, haymarket books chicago, 2014, 210 pages, isbn: 9781-60846-498-2". journal of indonesian legal studies 7, no. 1 (2022): 391408. https://doi.org/10.15294/jils.v7i1.57385 short note this book was written by lenin in august–september 1917, with the original russian title “государство революция (gosudarstvo i revolyutsiya)”, which was later translated into english as “the state http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 393 available online at http://journal.unnes.ac.id/sju/index.php/jils and revolution.” the book that gives a definitive presentation on the marxist theory of the state. it is written in the clear and sharp lenin style, and is the cornerstone of revolutionary marxism.1 the author's real name was vladimir ilyich ulyanov (10 april 1870 – 21 january 1924) who was later nicknamed "lenin" after the lena river in siberia.2 he served as head of government of the russian soviet federative socialist republic (rsfs russia) from 1917 until his death, and also as head of government of the soviet union from 1922 until his death.3 lenin was politically marxist and had contributed to his political ideas in marxist thought known as leninism. this idea when combined with marx's economic theory is known as marxismleninism.4 as the head of the bolshevik branch of the russian social democratic labor party, he was instrumental in the beginning of the october revolution of 1917, which resulted in the overthrow of russia's provisional government and the establishment of the russian socialist federative socialists. not long after that, lenin began enacting socialist reforms, one of which was the transfer of property rights to the soviets, including those pertaining to land and buildings (labor councils).5 lenin was pressured into signing a peace 1 a riley, lenin and his revolution: the first totalitarian. soc 56, 503–511 (2019); ziva galili, “women and the russian revolution.” dialectical anthropology 15 (1990): 119-127. 2 jane burbank, “lenin and the law in revolutionary russia.” slavic review 54, no. 1 (1995): 23–44. 3 richard gregor, “lenin, revolution, and foreign policy.” international journal 22, no. 4 (1967): 563–75. 4 k marx, critique of the gotha programme in mecw, v 24. moscow: progress publishers. first written in 1875, (1989); k marx, and engels, f. manifesto of the communist party in mecw v 6. moscow, (1984). h draper, karl marx’s theory of revolution. v 1. new york: monthly review press (1977). 5 gizachew tiruneh, “social revolutions: their causes, patterns, and phases.” sage open, (july 2014). http://journal.unnes.ac.id/sju/index.php/jils 394 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils treaty that brought an end to russia's participation in world war i by threats from the german empire. in 1921, he launched what came to be known as the new economic policy, which was a form of statesanctioned capitalism that kicked off the process of industrialization and post-civil war reconstruction in russia. a year later, the russian socialist federative soviet amalgamated with other areas that had previously been a part of the russian empire to form what would later be known as the soviet union. lenin served as the leader of this new government. vladimir lenin made a significant contribution to the development of the revolutionary program and strategy for the working class throughout the time of imperialism. at the same time, lenin was simultaneously working to create and implement the organizational practices of bolshevism. lenin had the foresight to realize that a mistake in theory would eventually translate into a mistake in practice, and that it was a matter of life and death to arrive at an accurate evaluation of the state and the working class's relationship to it. in his consideration of the issue, lenin approached this matter with a great deal of caution. the book the state and the revolution was written in the heat of the russian revolution in the late summer of 1917. lenin aimed his fire at the reformers for the slave adaptation of the socialist leaders to the interests of the bourgeoisie. these words retained their full force that day, when the self-proclaimed socialists gave themselves cover for the anti-worker's actions of the bourgeoisie. lenin was confronted with the skepticism many anarchists had regarding the state. he did not merely advocate for the elimination of all forms of state power or a complete rejection of it. lenin elaborated on marx and engels' theory of the dictatorship of the proletariat, and he advocated for the overthrow of the capitalist state and its replacement with a workers' state that aimed at the expropriation and http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 395 available online at http://journal.unnes.ac.id/sju/index.php/jils oppression of capitalists. lenin's ideas were influenced by marx and engels. book review chapter 1 class society and the state6 lenin created the stage for his side of the debate in the first chapter by allowing marx and especially engels to speak for themselves about the genesis and role of the state in society. engels was particularly influential in lenin's thinking. in contrast to the distortions of opportunists like karl kautsky, he draws on the fundamental tenants of the marxist viewpoint on the state by offering a number of crucial excerpts from the origin of the family, private property and the state and engels' anti-dühring.7 then lenin divides the chapter into four parts, lenin outlines the basic conclusion that the state arises from the division of society into classes; that it exists to ensure the domination of the rulers, to possess the upper classes of the exploited masses and not to reconcile the competing classes in society; that it relies on a specialized agency of armed men and physical strength to carry out this function; that in seizing power the proletariat abolishes this state and replaces it with the dictatorship of the proletariat, which in turn will disappear when class antagonisms are removed; and that this is not possible without violent revolution. 6 vladimir ilyich lenin, the state and revolution, chicago: haymarket books (2014). 7 f engels, [preface to the fourth german edition (1890) of the manifesto of the communist party] in karl marx frederick engels collected works (hereafter mecw), v 27. moscow: progress publishers. first written in 1890, (1990). http://journal.unnes.ac.id/sju/index.php/jils 396 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils lenin then evaluated the historical experiences of the numerous revolutions and expanded his position inside the state on the basis of these main concepts. in essence, however, it was precisely these concepts that distinguished revolutionary marxism from reformism. chapter 2: the experience of 1848–18518 lenin takes a more in-depth look at the evolution of marx's thinking on the question of the state following the french revolution of 1848 and the seizure of power by louis bonaparte in december 1851 in this chapter of his book. lenin's focus is on the period after the french revolution. lenin demonstrates, through the use of marx's prerevolutionary writings as well as louis bonaparte's eighteenth brumaire, that the concept of the dictatorship of the proletariat runs consistently throughout marx's work. this is in contrast to the fact that revolutionists and opportunists claim that marx supported the dictatorship of the proletariat. lenin demonstrates that marx did not support the dictatorship of the proletariat. lenin was quoted as saying that the notion that the state is capable of overcoming the class struggle and convincing the minority to meekly surrender to the majority is a petty-bourgeois version of the utopian ideal. according to marx, every previous revolution has been merely an improvement on the existing state apparatus, in the form of an ever-growing bureaucracy and army. the task of the proletarian revolution is not to inherit this state but to destroy and replace it with a proletariat organized as the ruling class. 8 vladimir ilyich lenin, the state and revolution, chicago: haymarket books (2014). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 397 available online at http://journal.unnes.ac.id/sju/index.php/jils chapter 3 the experience of the paris commune of 1871−marx’s analysis9 having proven, in a general sense, that the working class is unable to simply seize control of an already-built state machine and employ it for its own purposes, the working class must instead strive toward the destruction of the pre-existing bureaucratic apparatus. in addition to this, it is essential to provide a detailed explanation of the specific pieces of machinery that need to be swapped out for other machinery. this comprehension can only come about as a result of the working class's fight for its very existence, and the paris commune provides the outside world with a sight of the dictatorship of the proletariat in action. lenin then defines the fundamental aspects of the workers' state at the beginning of an armed people rather than a standing army, which is a summary of marx's interpretation of his experience. in addition to this, the election of all officials with the right of recall, the limitation of the salaries of officials to labor wages, and the abolition of parliamentarism in favor of workers' councils made up of elected delegates with legislative and executive functions are all things that need to happen. it laid the groundwork for the workers' democracy that exists even to this day. chapter 4 continuation: supplementary explanations by engels10 lenin opens this chapter by drawing a clear distinction between marxist analysis and the anarchist notion that the state can be abolished overnight. the anarchist position holds that the state can be 9 vladimir ilyich lenin, the state and revolution, chicago: haymarket books (2014). 10 vladimir ilyich lenin, the state and revolution, chicago: haymarket books (2014). http://journal.unnes.ac.id/sju/index.php/jils 398 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils abolished overnight. he emphasized that in order for the proletariat to triumph over the inevitable opposition of the bourgeoisie, they had to make use of the state as a temporary instrument. anarchists are going to deprive the working class a tangible and necessary method of protecting the revolution in the sake of some abstract concept that they believe is more important. lenin emphasized the fact that the true workers' state was distinct from all other states in this regard, and he compared it to other states throughout history. instead of serving a specific power that is placed above society to ensure the control of a small minority, we should do our best to serve society as a whole. the vast majority of people use the state as a tool to subjugate the smaller population groups. lenin then continued to explain why marxists should not be considered neutral on the subject of how the bourgeois state ought to be structured. for instance, democratic republics are superior to autocratic monarchies insofar as these conditions make it simpler for working people to organize social revolutions. this makes democratic republics preferable to autocratic monarchies. on the other hand, this in no way suggests that there is any sympathy for the bourgeoisie.11 lenin also clarified that privileged officials should not be trusted with the administration of the workers' state after he stated that this responsibility should not be delegated to them. instead, everyone needs to learn how to take turns carrying out different state functions. when the majority of people have acquired the skills necessary to self-manage and genuinely take charge of social production, the groundwork that is necessary for the complete dismantling of the state will have been laid. 11 gizachew tiruneh, “social revolutions: their causes, patterns, and phases.” sage open, (july 2014). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 399 available online at http://journal.unnes.ac.id/sju/index.php/jils chapter 5 the economic basis of the withering away of the state12 lenin addresses the period of time spanning the transition from capitalism to socialism to communism without a state or monetary system in this chapter of his work. lenin was also critical of the fact that many capitalist nations in the west are referred to as democracies, despite the fact that the vast mass of the population is unable to participate in actual politics other than casting a vote once every few years. instead, capitalists make use of their wealth and position to exert direct and indirect influence over state institutions in order to better protect the basic interests that underpin their businesses. the socialist revolution will ultimately result in a democracy that is more inclusive and, more specifically, a democracy that serves the majority rather than the minority. however, as time passes, the conflicts between social classes that were the impetus for the establishment of the state in the first place will become less relevant, and the state, in whatever shape it takes, will become less necessary. people will develop the habit, rather than being compelled to work and obey the law through the use of economic coercion or physical force, of earning for the common good and adhering to the rules of social life. this will eliminate the need for such methods. in reference to marx's critique of the gotha programme, he differentiates the earlier stage of communist society, which he refers to as socialism, from the later, more advanced stage. the lowest transitional stage has not completely shed the imprint of its previous existence as a capitalist society. the distribution of social wealth in general is still controlled by the amount of labor done, which means 12 vladimir ilyich lenin, the state and revolution, chicago: haymarket books (2014). http://journal.unnes.ac.id/sju/index.php/jils 400 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils that equality of living has not yet been achieved to its full potential, despite the fact that class exploitation has been formally eliminated. however, once capitalism has been expropriated and the profit motive has been abolished, it will be possible to massively accelerate the development of the productive forces, which will lead to a relatively rapid transition to full-fledged communism. this is because the development of the productive forces is directly proportional to the level of economic activity. the idea that each person should be treated according to his or her ability and given what they require should not be completely realized until that time. chapter 6 the vulgarization of marxism by the opportunists13 lenin makes an effort in the final chapter to argue against those adherents of marxism who want reform rather than revolution by defending the revolutionary marxist heritage. he did not come back with the idea that the proletariat could either take control of the already bourgeois state or refuse to exercise any form of state authority. it is contingent on its own conditions and can only be conquered by the use of force. lenin emphasized that in order for society to function properly under capitalism, bureaucracy is required. this is due to the fact that the working masses are forbidden from engaging in political activity. one of the ways that capitalists keep control of the state is through the use of a loyal bureaucracy. one of the tasks that must be accomplished during the proletarian revolution is the dismantling of the bureaucracy that is associated with the bourgeois state. all functionaries must be replaced with workers who have been elected to the positions, and these workers must be paid the same wages as 13 vladimir ilyich lenin, the state and revolution, chicago: haymarket books (2014). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 401 available online at http://journal.unnes.ac.id/sju/index.php/jils the average worker. when everyone is a bureaucrat for a certain amount of time, then no one else can become a bureaucrat after that. lenin, in his critique of karl kautsky's revisionist distortions, pointed out that the proletariat's takeover of state power cannot be accomplished only by securing a majority in parliament. this was one of lenin's main points in his argument. this is only possible if the bourgeoisie are displaced as the dominant social class in the state by the working class, the proletariat, who would then organize themselves as the governing class. this can only be accomplished by violent social upheaval. due to the fact that he was preoccupied with the october revolution, lenin was unable to successfully complete the book. on the other hand, he mentions in a footnote that experiencing the revolution first-hand was much more pleasurable and gratifying than writing about it afterwards. book criticism 1. lenin's concept of the state as the proverb states "the experience is the best teacher," the theory of revolution in the ideas of karl marx which was conveyed by vladimir lenin in his book the state and revolution has indeed produced results with his success in achieving the ideals of total state change. however, there are some things that don't necessarily become real ideas in real life. when analyzed from lenin's writings from his book, it will be found several things that have drawn criticism. but this is basically a different perspective from lenin's understanding. among these are the concepts of the state, freedom, and the state system. http://journal.unnes.ac.id/sju/index.php/jils 402 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils lenin started with a quick assumption and established that the state is a body that arises from irreconcilable class antagonisms. whereas the state is a set of institutions that monitor, control, and enforce the rules of one class over another, so as to ensure a better order to continue exploiting its citizens. lenin finally showed that the state is about soldiers, police, prisons and courts. not too much freedom of argument that can be conveyed by citizens. except for the rules and restraints in the name of revolution.14 lenin's argument, which followed marx's in the communist manifesto, was that the state was nothing more than a committee tasked with resolving the problems faced by the whole ruling class. the word "whole" best describes this situation. lenin brought out the nuances in marx's theory by pointing out that the disintegrating elite in society is rarely headed in the same direction to go. this was one of the ways that lenin drew out the nuances. the current discussion regarding europe serves as a good example of how the ruling class will continue to be divided. conflicts between persons in positions of authority can quickly become contentious. therefore, states must try and hold, sometimes warring factions and groups together. failure to do so would be disastrous for those in power as their bickering went too far due to their often diverging economic and political interests. class divisions often open room for rebellion from below. this was something the state wanted to avoid and therefore required efforts to mediate between the factions within the ruling class. so the state according to him is like a big house with different rooms with different interests. the crucial room, or basement, is where the special agencies, both armed men and women are placed. 14 sarah washbrook; the ambivalent revolution: forging state and nation in chiapas, 1910–1945. by stephen e. lewis (albuquerque, university of new mexico press, 2005) 283 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 403 available online at http://journal.unnes.ac.id/sju/index.php/jils in this regard, the function of the state according to lenin is clearly very repressive. 2. controversy of leninist ideas in the modern era lenin's ideas contained in his book later developed into a new understanding and theory called the theory of leninism. several countries were fascinated by this notion and adopted it in their national life, such as north korea, cuba, vietnam, cambodia, and the people's republic of china. however, some countries even reject it and claim that it is not in accordance with the freedom of human life, even considering it as anti-religious and tends to lead to atheism, such as democracies in the west and also indonesia after the g30s/pki.15 in theory, lenin shifted marx's analysis of capitalism from advanced capitalist economies to dependent colonial countries. he combined political economy, geopolitics, political organization and the sociology of social structure to form an innovative revolutionary praxis. the expansion of western capitalism shifted social and political contradictions to countries moving from feudalism to capitalism. lenin was right in his assessment of the social forces supporting the bourgeois revolution. but he gives an overly optimistic prediction for the disintegration of monopoly capitalism and only a partial analysis of the working class in the developed capitalist countries.16 lenin's political approach required a redefinition of the balancing forces and class alliances and a shift in focus from the semi 15 am aji, nr yunus, gra putra, communism and its influence on the emergence of atheism. palarch's journal of archaeology of egypt/egyptology. 17 (9) 2020, 411424. 16 xueguang zhou and liren hou. “children of the cultural revolution: the state and the life course in the people’s republic of china.” american sociological review 64, no. 1 (1999): 12–36. http://journal.unnes.ac.id/sju/index.php/jils 404 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils periphery to the 'strongest link' in the capitalist chain. a 'return to lenin' is not to adopt his policies but an impetus to rediscover the socialist sociological vision that stems from the hopes of the enlightenment and marx's analysis of capitalism.17 in his book, lenin shows his hatred for capitalism. according to him capitalism is a system of geo-political competition, and armed forces can be used to defend, expand or destroy the territory they live in. the arrogance of capitalism to control the natural wealth in the country, even in other areas. this is what causes conflicts between nations in the form of endless wars. however, the anti-capitalism movement and the campaign for socialism cannot necessarily be fully justified. because in reality socialism does not always guarantee complete welfare for all citizens, even citizens are only used as a tool to fulfill the political ambitions of the political elite.18 this book is controversial in global political discourse. however, this controversial idea then gave rise to new ideas as a form of truth as a result of the rebellion of thought. this can be seen from the existence of questions and discussions about the relationship between the proletariat and the state as an important question posed by class revolutionary action. this question was very important that day because of the state of the world in war and the existence of a state revolution. however, the fact that the problem of national defense then became a natural matter of the defense of the bourgeois state, and the national problems of a country depended on the support of other countries. 17 david lane, v.i. lenin’s theory of socialist revolution. critical sociology. 2021, vol. 47(3) 455–473. ps://doi.org/10.1177/0896920520958451 18 revolutionary perspectives. bukharin’s review of lenin’s ‘the state and revolution”. magazine of the communist workers’ organisation affiliate of the internationalist communist tendency. series 4, no 11, winter 2018 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 405 available online at http://journal.unnes.ac.id/sju/index.php/jils after his death, marxism–leninism developed into several new branches of thought such as stalinism, trotskyism, and maoism. lenin is still a controversial world figure. his detractors gave him the label of dictator because he was considered to have violated many human rights during his tenure, while his supporters opposed this opinion by arguing that lenin's powers were limited and giving him the title of defender of the workers. however, lenin had a major role in the international communist movement and became one of the most influential figures in the world in the 20th century. conclusion the delivery of the contents of the book written by vladimir lenin is seen in his doctrinal and campaign style, to raise public awareness and follow his ideas and thoughts. this book, which was written in the era of revolution, conflict and violence, provides a heat of assertiveness and dominant power. but finally, the readers can be wise with their belief to think creatively in order to achieve freedom and modernity. this book by lenin boldly demonstrates this distinction. the reader in this condition cannot blame the author for citing extensively the works of marx and engels. because basically these two figures made the new school of leninism grow and develop. this work at least provides input and evaluation to western capitalism. this is where the war of discourse between capitalist understanding, and social groups looks real. references aji, a. m., yunus, n. r., and putra, g. r. a. communism and its influence on the emergence of atheism. palarch's journal of http://journal.unnes.ac.id/sju/index.php/jils 406 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils archaeology of egypt/egyptology. 17 (9) 2020, 411-424. https://archives.palarch.nl/index.php/jae/article/view/3469/3457 burbank, jane. “lenin and the law in revolutionary russia.” slavic review 54, no. 1 (1995): 23–44. https://doi.org/10.2307/2501118. draper, h. karl marx’s theory of revolution. v 1. new york: monthly review press (1977). engels, f. [preface to the fourth german edition (1890) of the manifesto of the communist party] in karl marx frederick engels collected works (hereafter mecw), v 27. moscow: progress publishers. first written in 1890, (1990). galili, ziva. “women and the russian revolution.” dialectical anthropology 15 (1990): 119-127. gregor, richard. “lenin, revolution, and foreign policy.” international journal 22, no. 4 (1967): 563–75. https://doi.org/10.2307/40200198. lane, david. v.i. lenin’s theory of socialist revolution. critical sociology. 2021, vol. 47(3) 455–473. https://doi.org/10.1177/0896920520958451 lenin, vladimir ilyich. the state and revolution, chicago: haymarket books (2014). marx, k. and engels, f. manifesto of the communist party in mecw v 6. moscow, (1984). marx, k. critique of the gotha programme in mecw, v 24. moscow: progress publishers. first written in 1875, (1989). revolutionary perspectives. bukharin’s review of lenin’s ‘the state and revolution. magazine of the communist workers’ organisation affiliate of the internationalist communist tendency. series 4, no 11, winter 2018. riley, a. lenin and his revolution: the first totalitarian. soc 56, 503– 511 (2019). https://doi.org/10.1007/s12115-019-00405-1 tiruneh, gizachew. “social revolutions: their causes, patterns, and phases.” sage open, (july 2014). https://doi.org/10.1177/2158244014548845. washbrook, sarah. the ambivalent revolution: forging state and nation in chiapas, 1910–1945. by stephen e. lewis (albuquerque, university of new mexico press, 2005) 283 pp. $24.95. the http://journal.unnes.ac.id/sju/index.php/jils https://archives.palarch.nl/index.php/jae/article/view/3469/3457 https://doi.org/10.2307/2501118 https://doi.org/10.2307/40200198 https://doi.org/10.1177/0896920520958451 https://doi.org/10.1007/s12115-019-00405-1 https://doi.org/10.1177/2158244014548845 jils (journal of indonesian legal studies) volume 7(1) 2022 407 available online at http://journal.unnes.ac.id/sju/index.php/jils journal of interdisciplinary history 2007; 37 (4): 664–666. doi: https://doi.org/10.1162/jinh.2007.37.4.664 zhou, xueguang, and liren hou. “children of the cultural revolution: the state and the life course in the people’s republic of china.” american sociological review 64, no. 1 (1999): 12–36. https://doi.org/10.2307/2657275. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.1162/jinh.2007.37.4.664 https://doi.org/10.2307/2657275 408 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils while the state exists, there can be no freedom. when there is freedom there will be no state. vladimir lenin estado y revolución about authors nur rohim yunus is ph.d. student in constitutional law at guu (gosudarstvennyy universitet upravleniya) moscow russia. he is also lecturer at state islamic university syarif hidayatullah jakarta. http://orcid.org/0000-0003-2782-1266, scopus id: 57216167775. researcherid/wos id: f-3477-2017. http://journal.unnes.ac.id/sju/index.php/jils https://www.goodreads.com/work/quotes/41787427 3 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 volume 1 issue 01 november 2016 jils 1 (1) 2016, pp. 3-12 issn 2548-1584 e-issn 2548-1592 role of the regional representatives council on bicameral parliament system riska alkadri 1 riska alkadri researcher and former of chief social humanities sciences forum universitas gadjah mada, yogyakarta, indonesia  riskaalkadri14@yahoo.com article info abstract submitted on june 2016 approved on september 2016 published on november 2016 after third amendment of the constitution of 1945 (uud 1945), the regional representatives council (dpd) has been formulated. the amendment directly changed the parliamentary system in indonesia, from unicameral into bicameral. the authorities of dpd in bicameral system still not clear enough. although it is stipulated on article 22d of uud 1945, the authorities is still limited if compared with house of representatives (dpr). this paper would discuss and examine the role of regional representative council as a second chamber from representative board in indonesian. the paper would distinguish beside the authorities also the mechanism applied by dpd and dpr. keywords: regional representatives council (dpd); bicameral; authority; parliament systems 1 s.h., universitas tanjungpura pontianak (untan); m.h., universitas gadjah mada, magister ilmu hukum (mih ugm), 2016. this research actually based on my thesis research project, and i am grateful to mr. aminito sh msi, as my supervisor, and the teams of social humanities forum ugm for their assistance and helpful comments. i also thank to editorial board of journal of indonesian legal studies (jils), postgraduate program, faculty of law universitasnegeri semarang. mailto:riskaalkadri14@yahoo.com 4 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang riska alkadri jils i (1) november 2016, 3-12 http://journal.unnes.ac.id/sju/index.php/jils introduction the regional representatives council has formulated after third amendment of the constitution of 1945 (uud 1945) on 2001. this amendment endorsed to fulfill demands and justice of society, especially for regional communities. the third amendment also directly changed the representative and parliamentary system in indonesia, from unicameral to bicameral system. bicameral or two chamber system was the government’s practice that used two chamber legislatives or parliaments. the authority of dpd specifically regulated on art. 22d of uud 1945, that dpd can endorse draft of bill (ruu) to house of representatives (dpr) in the context of regional autonomy issues; join discuss ruu related to regional autonomy; and give the consideration to the question of the state financial, ruu on tax issues, education, and religion. dpd can also conduct surveillance to the implementation of regulation relating to the regional autonomy and state financial that the results are submitted to the dpr. those provisions emphasized that authority of dpd still very limited if compared with dpr. all tasks and authorities of dpd limited to the aspects related to regional issues. not aligned position between dpd and dpr can be seen from the execution of tasks and authorities of dpd that still have to involve dpr and the non-participation of dpd on decision making process concerning their tasks and authorities. although there is specific law that regulated more specific concerning to the distribution of power and authorities between dpd and other state institutions, on law no. 22 of 2003 concerning structure and position of mpr, dpr, dpd, and dprd that has been modified by law no. 17 of 2014 concerning people’s consultative assembly (mpr), house of representatives (dpr), and regional house of representatives (dprd), still cannot clearly ask the main question of the dpd authorities and power. this paper would discuss and examine how the role of regional representatives council (dpd) as two chambers on bicameral parliament system in indonesia. the paper used some theories especially concerning to bicameral theory and state structure theory. an overview of bicameral theory bicameral system described by simambura (2011) as a system consisting of two different chambers and usually called as majelis tinggi or upper house and majelis rendah or lower house. each chambers politically, territorial and functionally reflects the representation of the public interest from every groups. the distinction of representation basically to avoid the occurrence of double representation. 5 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 conceptually, the authorities of each chambers is equal but in the development, there is an effort to reduce the authority of one of the chambers. this is become an effect of growth of strong bicameralism and soft bicameralism concept. strong bicameral has an equality degree of authorities both two chambers, while there is non-equality degree between two chambers. strong bicameral with the same strong authority both two chambers aims to create and endorse check and balances mechanism, but the practice in some countries often found their strengthening efforts to one of the chambers— majelis tinggi (upper house)—even though the majelis rendah (lower house) will also has a right to provide feedback or consideration, especially in the context of legislation function. arend lipjhart as quoted by simambura (2011) stated that there were three characteristics that distinguish between parliament with a strong bicameral and weak bicameral system, namely: first, the authority granted formally by constitution to two chambers. second, how the selection method of memberships usually affected to the legitimate of democracy of these chambers. third, a strong difference between two chambers on legislative bicameral is both two chambers may have a way or a different design also representatives (over represent) a particular minority/special. bicameral in state system in indonesia in the early days of its establishment in 1945, indonesia is a adopting a single chamber (unicameral), this chamber recognized as a total manifestation of people sovereignty named people assembly (mpr). thus, this institution then idealized be the highest state institution that is infinitely powerful. this view stipulated on art. 1 (2) and further described in the explanation of the 1945 constitution as it was concluded by soepomo at the first session of the meeting of the preparatory committee for indonesian independence on august 18, 1945. the authorities of the committee includes: (1) determine the constitution; (2) establish the state policy; and (3) vote for the president and vice president. therefore, the hierarchical position of the president is under mpr, pursue the state policy that has been set by mpr. according to soepomo, the president should not have its own politics, but have to run the state policy guidelines established by the mpr, where the mpr consist elected dpr that represent the people and delegates from the regions and factions, in particular economic groups which the recruitment system is different from dpr. the position of mpr itself is higher than other state agencies, including the president, while the position of dpr is equal to the position of president (nebengordnet). but, actually, dpr today has a strong position, and cannot be dissolved by the president and could always control the actions of the president. even, if the president violate the state policy that stipulated by law or mpr, the dpr could invite the president to attend the mpr special 6 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang riska alkadri jils i (1) november 2016, 3-12 http://journal.unnes.ac.id/sju/index.php/jils session to hold the president. this description concerning to unicameral system that adopted by indonesia in the early days of its formation. indonesia ever been applied bicameral system at the time when united republic indonesia (republik indonesia serikat/ris) era in 1949 with ris constitution as the highest constitution. in ris constitution, chapter iii article 98-121, besides stated concerning dpr, also there is senate that stipulated in chap. ii art. 80-97, that each senate represents the region and each region have their members in the senate. 2 senate members are appointed by their regional government and have three candidates for each seat. if required for two seats, the government concerned is free to use as a single one. 3 concerning to the duties and powers of the senate and dpr today, stipulated in chap. iv concerning to the government, especially on part i concerning general provision and part ii concerning laws and regulations. 4 the weakness of bicameral system applied in ris era, is there is no provision concerning to the exclusion of the term of office for dpr ris members and members of senate. in ris constitution, there is only regulated concerning to the holding of general election to formulate the directly elected dpr. art. 111 par. (1), states that: “within one year after the constitution comes into force, then around the indonesia, government ordered to hold general elections based on free and secrets principle to prepare the directly elected dpr.” in addition, this provision also stipulated in article 84 that did not mention exactly the term of office for senate. “members of the senate always allow to resign, and they should be with a letter to the chairman.” discussing to the role of regional representatives council as second chamber from representative board in indonesia post reformation, the imagination to reform and fix the state structure and practices growing stronger and as the final, amendment of constitution has been endorsed through four steps, since august 2000 to august 2002. on third amendment on may 9, 2001, regional representatives council (dpd) stipulated on chapter viia, article 22c and 22d. the authorities and power of dpd further regulated by law no. 22 of 2003 and modified by law no. 17 of 2014 concerning mpr, dpr, dpd, and dprd. according to this law 2 see art. 80 pars. (1) and (2) of ris constitution 3 see art. 80 pars. (1) and (2) of ris constitution 4 jimly ashiddiqie, 2005, implikasi perubahan uud 1945 terhadap pembangunan hukum nasional, sekretariat jenderal dan kepaniteraan mahkamah konsitusi, jakarta, pp. 13-15 7 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 (law no. 17 of 2014) can be summarized that structure and position, functions and power of dpd, as follows: 1. membership of dpd member of dpd voted from every province on general election of each province. the member of each provinces are same and all member of dpd were cannot allowed more than one per third of their member. 2. power an authorities of legislative, that dpd can endorse draft of bill (ruu) and join to discuss and examine ruu related to regional autonomy issues, central and regional relationship, regional establishment, expansion and merging, management of natural resources, and other economic resources, and financial balancing between central and regional. 3. giving the consideration that dpd gives consideration to dpr concerning to rapbn, ruu related to tax, education and religion, and giving a consideration to appointment of members of bpk (audit board of indonesia). 4. control and supervise to the implementation of law related to the regional autonomy issues, central and regional relationships, regional establishment, expansion and merging, natural resources management and other economics resources, and all issues related to financial balancing between central and regional, state budget (apbn) related to tax, education, and religion, and presenting the result of controlling and supervising to dpr as material consideration to be followed up. fourth amendment of the constitution on 2002 has been reconstructed the power and authorities of mpr especially in part of position, power and authority, and composition. regional representatives and groups was eliminated and then reformulated a new board, namely regional representatives council (dpd). mpr member’s composition consisted of member of dpr and dpd. the existences of dpd can be stated that parliament system in indonesia has been changed and close to two chamber system. but, this system (bicameral/two chamber) is still not perfect and clearly stated because of discrepancy of authority of dpr and dpd. the discrepancy in this context means that as follows: 1. the composition of membership the provisions of article 22c uud 1945 arranged that the number of members of dpd shall not exceed one third of the members of dpr. in the other words, it can be concluded that nature of dpd members is limitative. surely, this provision indicates that there is an absence of a balance power between dpr and dpd. it will be implicated for decision making on mpr, and automatically with a dominant number, dpr can affects and masters the majority of votes in mpr. as stipulated on art. 14 par (3) of law no. 17 of 2014, states that the session of mpr was officially legitimate if attended by: a) at least three fourth from total amount of mpr members to vote a dpr suggestion to impeach president and/or vice president. 8 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang riska alkadri jils i (1) november 2016, 3-12 http://journal.unnes.ac.id/sju/index.php/jils b) at least two third from total amount of mpr members to change and enact the constitution. c) al least fifty percent plus one from total amount of mpr to other sessions as regulated on par (a) and (b). according to that provision, concerning the composition of votes, is can be stated that majority votes on mpr only political votes and political interests, and it feared that resulting decisions are political only. 2. legislation function art. 22d of uud 1945 not clearly regulated the limitation of dpd authority in the context to examine of ruu, do not set the extent of the involvement of dpd in the discussion and examination of ruu. 3. position art. 22c and 22d, and law no. 22 of 2003 just only place dpd as watchdog institution of dpr either in legislation function or controlling and supervising function. position of dpd cannot regulated clearly in the constitution or any other specific laws. this condition, merely, may threaten the position and existence of dpd. the weakness of power and authorities and position of dpd sparking strong protest from dpd itself and other experts to urge the strengthening of the existence of dpd on indonesian constitutional system with the expectation that dpd can optimally acts as counterweight of national interests and regional aspirations. therefore it needs to endorse the expert study to avoid double representation. because the bicameral system basically has always distinguished between first chamber and second chamber. according to rod hague and martin harropas quoted by jimly ashiddiqie, that “the main justification for having to (or occasionally more) chambers within an assembly are first, to preset destiny interests within society and secondly to provide check and balances within the legislative branch”. 5 thus, the differences between parliament with two chambers—dpr and dpd— may be determined by two factors which could be indicators of distinction, are: a. recruitment system of membership recruitment system between dpr and dpd should be distinguished, in the context of procedure and representation of people’s aspiration. according to jimly ashiddiqie, in the context of people’s representation, dpr represents people in general with the orientation of national interests. besides, dpd shall represent people in the context of regional with the orientation of regional interest. 6 with regard to the scope of the procedure on member election both institutions, it should be distinguished. 5 jimly ashiddiqie, 2011, hukum tata negara dan pilar-pilar negara demokrasi, sinar grafika, jakarta, p. 18. 6 ibid., p. 19 9 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 as for, the members of dpr that directly elected by the people through a proportional system that used for strengthening the national political institution building. while, the dpd directly elected by the people through district system, by selecting the known figure in the area concerned base on the calculation of the winner takes all. 7 b. distribution of power between dpd and dpr in carrying out the duties of parliament. to avoid overlapping in terms of powers and authorities between dpr and dpd in central level can be minimized by explaining duties of parliament by detail in area of legislation, controlling and supervising and also budgeting. with regard to the functions of budgeting actually has encompassed of all legislation function in terms of its regulations and supervision function as far as concerns its function as watchdog institution to government performance. a) supervisory function jimly ashiddiqie argued that in the context of function of supervision, the parliament doing some supervision activities as follows: 1. determining the appointment and dismissal of public officials. 2. surveillance against the implementation of the constitution and laws. 3. determining and supervising budget and financial of the state. 4. protecting the property of rights and wealth of the citizens from the imposition of the state. 5. conducting of public debate concerning government policy issues. 6. approving the government planning and ratified its implementation. 7. organizing the hearings. 8. set the problem of war and peace. 9. approving the general amnesty. 10. organizing the government together (co-administration). 11. organizing the tasks that are semi-legislative and semi-judicial. 12. request of liability to the head of government.8 specifically for the first task i.e. determination of the appointment dismissal of public officials, should be given to dpr, and for the last task i.e. asking the accountability to the head of government, the function of prosecution was conducted by dpr, while dpd participate in determining the punishment verdict in the trial of mpr. on the contrary, specifically for the function to the protection of property rights and wealth of the citizens from the imposition by the state should be left to dpd because this institution represents the people in areas that represent layers of society until the bottom layer in more possible to get complaints from 7 ibid. 8 ibid., p. 22 10 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang riska alkadri jils i (1) november 2016, 3-12 http://journal.unnes.ac.id/sju/index.php/jils the community who feel burdened by the government. regarding other tasks can be done simultaneously. 9 b) legislative function legislative function covers several activities, including reviewing, designing, discussing, and signing legislation. opinion growing among the experts is not necessary to distinguish of scope on legislative function that becomes the concerns of both institutions. it just enough formed the secretary general of dpr and dpd which combined into one division and completed with legislation board that led and composed of representatives of dpr and dpd plus experts from outside parliament. 10 the mechanism of acceptance of proposed ruu that will be processed by this legislation board i.e. if the proposed ruu comes from the president, and then this board will determine who has the right to discuss and review it, whether the dpr or dpd. however, if the proposed ruu comes from the dpr or dpd, then the board of representatives who first proposed that reverses the right to discuss and review it. “but, at the same time, also determine the relationship of checks and balances between the two chambers, namely by setting up the existence of veto rights”. 11 when ruu has been passed by a chamber within 30 days but got rejection from other chamber, then ruu should be discussed again by the chamber who discussing it before to get more approval, i.e. two third multiple two third (2/3 x 2/3) of total number of its members (overwrite). however, if a ruu has been approved by two institution such as dpr and dpd but vetoed by the president, then the verdict of settlement should be taken in the session of mpr with the support of two third multiple two third (2/3 x 2/3) of the combined amount of the dpr and dpd. specific regarding to the determination and change of the constitution may be decided upon in the session of mpr based on suggestion proposed by dpr or dpd. 12 there are other problems with regard to the implementation of two chamber system. some experts argued that bicameral system was more suitable for federal state like the united states of america. while this argument not clear, because the bicameral system is also applied in a unitary state such as the netherlands (tweede kamer) or united kingdom (house of lords). besides, also there are five countries which been applied a bicameral system i.e. us, germany, switzerland, the united kingdom, and the netherlands that have a distinction of functions and roles between two chambers. the senate (upper chamber) of usa, germany, and swiss relatively has same political power, whereas in uk political power of house of lords or 9 ibid., p. 24 10 ibid. 11 ibid., p. 25 12 ibid. 11 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 upper chamber is weaker, and so are the netherlands which erste kamer or the first chamber in senate also has the weak political power. 13 according to political power in democracy system, institute for democracy assistance (idea) has been released the map of democracy system in 54 countries recognized as democratic countries (at the time, indonesia not listed), that about 32 countries were bicameral system and 22 countries used unicameral system. while, in the context of development of number of bicameral state, at the first decade of 1970’s there are about 45 countries with bicameral system, and today this amount increase significantly, not least from 70 countries used this system. furthermore, in south east asian countries (asean), there are 10 countries of asean used the bicameral system, seven of them (malaysia, thailand, philippines, cambodia, laos, singapore, and indonesia) used democracy system, and the other countries (brunei darussalam, myanmar, and vietnam) used different system. seven of countries used democracy system and five of them applied the bicameral system such as malaysia, philippines, cambodia, thailand (before military coup) and the last is indonesia. 14 those all strong reasons as remarked earlier, for today dpd should not only posited as a complementary institution in parliament system of indonesia, but also need a concrete and clear measures and systematic to strengthen the power of authorities of dpd. according to efriza syafuan rozi, there are some steps for this strengthening, are: 1. amendment of the constitution. 2. revise the law no. 22 of 2003 as modified by law no. 17 of 2014concerning structure and position through political package. 3. strengthening dpd by synchronization of the rules of procedure. 4. strengthening dpd through the specific law. 5. revise the law no. 22 of 2003 as modified by law no. 17 of 2014 concerning structure and position through judicial review 6. strengthening dpd through constitutional convention.15 conclusions indonesia adopted a weak bicameral parliament system that the system requires one of the chambers in parliament has the power and authority or position more less. in the other side, in the context of indonesian constitutional system, a parliament which has less position represented by regional representative council (dpd). with the implementation of this weak bicameral system, it will automatically have an impact on non 13 efriza syafuan rozi, loc. cit., p. 380 14 ibid., pp. 411-412 15 ibid., p.433 12 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang riska alkadri jils i (1) november 2016, 3-12 http://journal.unnes.ac.id/sju/index.php/jils represented people aspiration in regional, the mastery of the parliamentary votes by the elite political interests and the lack of internal check and balances in representative institutions. finally, at the concluding remarks, author suggest that is need to rearrange of the functions between dpd and dpr that can be endorsed by some ways, such as, amendment to the constitution, revise of law no. 17 of 2014 concerning mpr, dpr, dpd, and dprd through political package or judicial review, strengthen the dpd by synchronization of rules of procedure, and by establishing specific law or by constitutional convention. bibliography ashiddiqie, jimly. 2005. implikasi perubahan uud 1945 terhadap pembangunan hukum nasional. jakarta: sekretaria jenderal dan kepaniteraan mahkamah konsitusi. . 2011. hukum tata negara dan pilar-pilar demokrasi. jakarta: sinar grafika. komisi hukum nasional. 2009. gagasan amandemen uud 1945: suatu rekomendasi. jakarta: khn press. rozi, efriza syafuan. 2010. parlemen indonesia: geliat volksraad hingga dpd, menembus lorong waktu doeloe, kini dan nanti. bandung: alfabeta simambura, charles. 2011, parlemen indonesia: lintasan sejarah dan sistemnya. jakarta: rajawali pers. laws and regulations the constitution of republic indonesia of 1945 law no. 22 of 2003 concerning structure and position of mpr, dpr, dpd, and dprd. law no. 17 of 2014 concerning people’s consultative assembly, house of representatives, and regional house of representatives. 291 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils volume 3 issue 02 november 2018 jils 3 (2) 2018, pp. 291-304 issn (print) 2548-1584 issn (online) 2548-1592 legal protection model for indonesian migrant workers anis widyawati anis widyawati department of criminal law, faculty of law, universitas negeri semarang  aniswidya02@gmail.com table of contents introduction ………………………………………………….….. 293 legal protection to indonesian migrant workers 295 model of legal protection to indonesian migrant workers ……………………………………………………………… 298 conclusion ………………………………………………………… 302 reference ………….……………………………………………….. 302 copyright © 2018 by author(s) this work is licensed under a creative commons attributionsharealike 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. mailto:aniswidya02@gmail.com 292 anis widyawati jils 3 (2) november 2018, 291-304 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on august 2018 approved on october 2018 published on november 2018 the emergence of several large cases of migrant workers in malaysia and singapore as well as in several middle eastern countries, especially saudi arabia, made all the nation's components flinch. many people argue that the problem occurs because of the low level of education of migrant workers. there are also those who say that this problem occurs because employers of indonesian labor services companies (pengerah jasa penyalur tenaga kerja indonesia, pjtki, now called perusahaan penyalur tenaga kerja indonesia swasta, pptkis) are not nationally minded and only pursue profit (profit-oriented). there were also those who argued that the cases of migrant workers occurred due to the inactivity of regulative and punitive functions of the government of the republic of indonesia. based on the background above, the problem can be formulated is how the urgency of legal protection for indonesian migrant workers abroad and how the legal protection model for indonesian migrant workers abroad. research carried out at bp3tki and the semarang manpower and transmigration office underlined that legal protection for indonesian migrant workers abroad is very important. the urgency in legal protection due to fulfillment of the rights of victims who work legally abroad but also cannot be fully implemented properly, due to differences in legal systems with migrant workers recipient countries that do not necessarily want to protect the rights of migrant workers who experience treatment not please from their own citizens. the migrant workers who work illegally the government has not been able to fully protect the rights of victims who have experienced criminal acts. the legal protection model for migrant workers currently emphasizes the fulfillment of victims’ rights who work legally abroad, such as obtaining legal assistance from a local lawyer appointed by the ambassador of the republic of indonesia in the country receiving the migrant workers, mentoring by psychologists and clergy, bringing the families of victims, compensation, and insurance claims. and at the same time, for migrant workers who work illegally the government has not been able to fully protect the rights of the victims. keywords: legal protection, indonesian migrant workers (pmi), protection how to cite (chicago manual style) widyawati, anis. 2018. “legal protection model for indonesian migrant workers”, journal of indonesian legal studies (jils), 3 (2): 291-304. 293 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils introduction national agency of placement and protection indonesian workers (badan nasional penempatan dan perlindungan tenaga kerja indonesia, bnp2tki) stated that the number of indonesian workers sent abroad was 203,490 (57%) and the number of male workers was 156,573 (43%). most of the indonesian workforces are women who work in the informal sector, which do not have sufficient education, experience and insights. most of them are recruited by brokers/agents from pjtki, who promise jobs to them with procedures that are fast and cheaper. this is what triggers the occurrence of a series of problems experienced by indonesian migrant workers (pmi) starting from abusive treatment from employers, persecution and even rape by their own employers (exploitation). this condition triggered the government to enact law no. 39 of 2004 concerning the placement and protection of indonesian workers abroad. the main problem in the protection law at issue is not about express or not, but the commitment of the government as a stakeholder in realizing protection to indonesian migrant workers (bnp2tki 2014; bnp2tki 2015; hidayah 2015). the placement of migrant workers itself often raises problems that involve not only pmi, but also involves many parties, such as families of migrant workers, sending companies and the government, in this case the ministry of manpower and transmigration and the ministry of foreign affairs/indonesian representatives abroad. this is one of them caused by the unclear responsibilities of the government and employment agencies regarding the fulfillment of labor rights (situmorang 2012). the responsibility of the sending agency or company, as emphasized by situmorang (2012), needs to be clarified so that excesses arise in the process of sending migrant workers such as (1) human trafficking transactions at the time of recruitment and placement; (2) illegal placement process, which tends to lead to human trafficking practices, (3) sexual harassment and violence during the pre-placement period, (4) inhuman treatment during the shelter period, (5) uncertainty about his departure abroad, (6) uncertainty about who will be his employer, (7) uncertainty about wages to be received, (8) violence, abuse, and sexual harassment on people, and (9) violence and fraud when returning to the area of origin, can be minimized. with the disclosure of several large cases of pmi in neighboring malaysia and singapore as well as in several middle eastern countries, especially saudi arabia, all components of the nation were shocked. many people argue that the problem occurs because of the low level of education of migrant workers. there are also those who say that this problem occurs because employers of indonesian labor services companies (pjtki, now called pptkis) are not nationally minded and only pursue profit (profitoriented). there were also those who argued that the cases of migrant workers occurred because of the inactivity of regulative and punitive functions of the 294 anis widyawati jils 3 (2) november 2018, 291-304 http://journal.unnes.ac.id/sju/index.php/jils government of the republic of indonesia ((rahardja 2015; ratya 2017; husin 2009). data from the bnp2tki development research and information center states that indonesian workers who have problems based on their country's placement are 156,100 problems (20120-2013) which are divided into several countries as follows. table 1 data of troubled indonesian migrant workers 2010-2013 no country of destination 2010 2011 2012 2013 1 saudi arabia 31.676 18.977 8.940 3.769 2 uea 6.843 6.770 5.545 3.737 3 taiwan 3.834 3.520 2.231 525 4 qatar 2.924 3.460 4.061 2.777 5 singapore 3.395 2.972 2.380 478 6 oman 2.140 2.131 1.956 1.337 7 kuwait 2.466 685 299 94 8 hong kong 1.789 1.808 1.215 223 9 malaysia 1.953 1.282 683 374 10 syria 339 437 1.214 5.054 11 bahrain 743 762 872 639 12 brunei darussalam 190 144 198 61 13 south korea 0 4 0 9 14 others 2.107 2.621 934 664 total 60.399 44.432 31.528 19.741 source: bnp2tki development research and information center, 2013 this amount is data recorded by bnp2tki based on incoming reports so that the numbers could be larger than the data with problems that could not be reported to the government, even those data also increased in 2018, considering the data on employment indonesia in 2018 also has a large number, namely 228,918 people, data as of october 2018 (bnp2tki 2018). the large number of indonesian migrant workers also with the large number of problems requires the government to provide optimal safeguards. this aspect of protection against the placement of workers abroad is very 295 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils much related to the management and regulation system carried out by various parties involved in sending indonesian workers abroad. for the pace of overseas employment, indonesia has established a mechanism through three phases of placement responsibility, namely the pre-placement phase, during placement and after placement (aswata 2006). the regulation regarding the placement of indonesian workers abroad is law no. 39 of 2004 concerning the placement and protection of indonesian workers abroad. in the consideration of letters c, d and e, it is stated that indonesian workers abroad are often used as objects of human trafficking, including slavery and forced labor, victims of violence, abuse, crimes for human dignity and other treatment that violates human rights. that the state must guarantee and protect the human rights of its citizens who work both at home and abroad based on the principle of equality of rights, democracy, social justice, gender equality and justice, anti-discrimination and anti-trafficking in persons. in the case of the placement of indonesian workers abroad it is an effort to realize equal rights and opportunities for workers to obtain decent employment and income, the implementation of which is carried out by observing the dignity, dignity, human rights and legal protection as well as equalizing employment opportunities and providing labor that corresponds to national needs. in the same context, bachtiar and prasetyo’s research (2017) looks at the problems of indonesian migrant workers by looking at the development potential of workers returning to indonesia. according to him, the need for reintegration of development for indonesian migrant workers returning to indonesia can have an impact on the domestic economic and social sector. however, efforts to protect indonesian workers abroad are still a problem, even though there are laws that regulate them, law no. 39 of 2004 concerning the placement and protection of indonesian workers abroad. legal protection to indonesian migrant workers migrant workers, including indonesian migrant workers (pekerja migran indonesia, pmi) comprise a significant proportion of the migrant labor force in the world. there are an estimated 232 million migrant workers around the world (ilo 2015). in 2010 it was estimated that 52.6 million migrant workers were domestics. estimates are difficult to obtain and some sources quote a figure between 51 and 100 million workers (ilo 2013). the numbers represent an increase of more than 19 million since the mid-1990s. most strikingly, domestic work accounts for 7.5 per cent of women’s wage employment worldwide and a far greater share in some regions (ilo 2013). in asia, at least 21.5 million women and men work in private households (or 41 per cent of all domestic workers worldwide) (ilo 2011). the international labor organization (ilo) (2015) notes that globalization, demographic shifts, conflicts, income inequalities and climate change will encourage ever more 296 anis widyawati jils 3 (2) november 2018, 291-304 http://journal.unnes.ac.id/sju/index.php/jils workers and their families to cross borders in search of employment and security (islam and cojocaru 2015). as a result of globalization, demographic shifts, conflicts, income inequality and climate change have also prompted many indonesians to find work abroad, one of destination country is malaysia. the number of labor migrants placed in malaysia through the indonesian ministry of manpower increased from a few thousand per annum in the early 1980s to an average of 100,000 in the 1990s. after 2000 their numbers more than doubled. the malaysian ministry of finance in 2010 reported 1.9 million legal migrants of which two thirds from indonesia (devadason and chan 2014). unofficial sources suggest there are probably an equal number of undocumented indonesians in the country and although accurate data are not available, it seems safe to estimate the total number of all indonesian migrant workers at over two million (iom 2010). legal migrants are mostly female, the irregular ones predominantly male (adi 2003; iom 2010). it also emphasized by spaan and naerssen (2017) that this number continues to grow every year so it requires its own management. in indonesia, the system of migration management has shifted from a laissez-faire approach to a more state-managed system, with regulation of private enterprise providing migration services (spaan and naerssen 2017). the urgency in legal protection by the government for indonesian workers who work abroad and become victims of criminal acts at this time prioritizes the fulfillment of victims' rights who work legally abroad but also cannot be fully implemented properly, due to differences legal system with recipient countries of indonesian migrant workers who do not necessarily want to protect the rights of migrant workers who experience unpleasant treatment from their own citizens. our country must submit to the law of the recipient country of indonesian migrant workers, therefore the efforts of the current indonesian government in protecting its citizens in this case are indonesian migrant workers who are victims of criminal acts in other countries only limited to diplomatic cooperation with recipient countries of indonesian migrant workers who do not have a protection agreement for indonesian workers. in the other hands, for indonesian migrant workers who work illegally the government has not been able to fully protect the rights of victims who have experienced criminal acts. legal protection provided by the government to female workers who work abroad and experience rape either committed by their employers or not the same as indonesian female workers who are victims of criminal acts (astawa 2015). in addition, the convention which contains elements of the protection of migrant workers' rights, namely the international convention on the protection of the rights of all migrant workers and members of their families, has not yet been effective against the protection of indonesian migrant workers in fulfilling their rights as victims of criminal acts. the indonesian government itself or by the recipient country of migrant workers who have ratified the convention. 297 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils the protection carried out by the indonesian government against indonesian migrant workers has not yet discussed protection of migrant workers. the lack of government specifies gender protection for indonesian migrant workers making the protection that has been carried out for every indonesian laborer who is a victim of any crime abroad gets the same treatment, whereas cases that occur to them are different and require different handling according to the consequences of the crime. in addition, bilateral agreements in the form of mous and international conventions on the protection of migrant workers and members of their families, which have only been ratified by several countries receiving pmi, have not fully guaranteed the protection of the rights of female migrant workers. related to this condition, iom (2010) stated that article 1 of law no. 39 of 2004 states clearly that the law only covers indonesian citizens who meet the requirements for a certain period. illegal migrant workers are not covered by this law and will not receive protection, regardless of whether they use illegal channels intentionally or not. viewed from the perspective of law no. 39 of 2004 is not much to say. the process of socio-economic reintegration is an important part of the protection of migrant workers and efforts to improve the welfare of indonesian migrant workers and their families. but law no. 39/2004 does not cover the protection of indonesian migrant workers upon their return from abroad. in fact, many migrant workers experience social and economic problems during reintegration even though the benefits of working abroad and the salary they generate can be increased if employment services in indonesia are also accompanied by financial education to manage their income from abroad. there are many cases of migrant workers returning home but unable to report problems experienced, for example migrant workers find that their salary is not paid by their employer after returning to their country. according to a study conducted by the institute for ecosoc rights in 2007 as cited by iom (2010), migrant workers returning from work abroad want to: (1) training and assistance in managing businesses; (2) support in forming cooperatives; (3) assistance in handling insurance and salary claims from work abroad; and (4) support for resolving family conflicts. according to iom (2010) the shortcomings of this law, in addition to the final initiative at the national level, generally government reform has been ad hoc and does not form a coherent and comprehensive strategy in dealing with many complicated issues regarding migration management in indonesia, especially the protection of pmi rights and illegal migration. indonesia signed the united nations convention on the protection of the rights of all foreign workers and their family members but national labor migration laws and policies are still intended to reduce regional unemployment and tend to focus on facilitating the flow of migrant workers rather than creating a protection mechanism for them. 298 anis widyawati jils 3 (2) november 2018, 291-304 http://journal.unnes.ac.id/sju/index.php/jils model of legal protection to indonesian migrant workers in terms of handling and fulfilling the rights of victims of migrant workers, the government must provide services for dispute resolution, legal assistance and recovery. the provision of legal assistance and dispute resolution services is part of efforts to fulfill the rights of migrant workers as citizens and in particular the fulfillment of rights the rights of migrant workers who are victims, in this case the right to justice, truth and recovery. the indonesian overseas workers bill explains some of the fulfillment of the rights of migrant victims who are victims abroad, article 50 paragraph (1) explains that overseas indonesian workers who are still involved in the problem are delayed until their problems in the recipient country are resolved. furthermore, the problems as stated in article 50 paragraph (1) are further clarified in article 50 paragraph (2), namely legal issues both criminal and civil, illness, injury and / or death due to acts of violence, mental health problems and settlement of rights which should be received by indonesian workers abroad. problems such as those listed in article 50 paragraph (2) can be handled by being included in the protection center to get legal assistance and advocacy as explained in article 50 paragraph (3). the draft law on indonesian migrant workers above is indeed one of the steps of the indonesian government in protecting its workforce who work abroad in the future. indeed, it may still require a considerable amount of time in ratifying the indonesian overseas workers bill to become a law that can protect our workforce who are abroad. however, various efforts have also been made by the indonesian government that we should appreciate, because in carrying out safeguards we need cooperation from various parties. legal reforms concerning the protection of indonesian migrant workers are required by reference to international conventions as emphasized by yuwono (2011) that in carrying out legal reforms relating to migrant workers, the indonesian government must also be guided by international law, namely the values of international conventions relating to the protection of migrant workers and their families. the new indonesian migrant workers law will also have to include the family principle as a protection unit. this means that the law must also include coverage that is entitled to protection, not only migrant workers as individuals but also members of their families. then it must include the principle of participation. with this principle the protection of migrant workers also involves the community directly involved in the placement of pmi. in addition to carrying out the role of the community, the principle of participation also demands that migrant unions be built and empowered. so that, with migrant trade unions, migrant workers can defend and protect themselves more effectively and actively. the law on the protection of migrant workers will also have to contain the principle of decentralization. it is very important in shortening the chain of problems of pmi due to centralistic policies. also the last but not the least, is the principle 299 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils of human rights and the right to be accompanied by an advocate when migrant workers will depart abroad, while working abroad and when returning to indonesia. one of the ways in preventive efforts for legal protection against indonesian female workers who are victims of exploitation rape is to send pmis to pmi recipient countries that have established bilateral cooperation with the indonesian government and already contain elements of protection for indonesian workers if they experience legal problems in indonesia the pmi recipient country. in addition, guidance is carried out by the government through bnp2tki and bp3tki in accordance with article 90 of law number 39 of 2004 concerning placement and protection of migrant workers such as providing guidance and advocacy for pmi starting from preplacement, placement period and after placement until pmi understands the legal system of pmi recipient countries so that if pmis get legal problems, they will know what to do. based on recommendations from the international organization for migration and some references obtained by the authors, there are several policies that should be taken by the government in an effort to protect the law for indonesian female workers who work overseas and become victims of exploitation rape, including: 1. endorsing the draft criminal code which clearly regulates the protection of its citizens through passive national principles. 2. revise law no. 39/2004 to include the obligations of the indonesian government to migrant workers, ensure protection of all parties and include the inclusion of articles with a gender perspective. most migrant workers who work abroad are women. the ministry of women's empowerment has an important role in this revision process. 3. ratification of the draft law on the protection of indonesian migrant workers which refers to the 1990 migrant convention concerning the protection of the rights of all migrant workers and members of their families. 4. make a cooperation agreement in the form of mou concerning the safety of indonesian workers, legal protection from the recipient country of pmi towards women workers for all forms of violence against women and also the safety of their reproductive organs. 5. collaborating with tki recipient countries that already have bilateral relations with the indonesian government as outlined in the mou on the protection of indonesian or state female workers who have ratified the 1990 un convention or ilo conventions. 6. increasing the role of district level governments in implementing and enforcing the law and policies regarding the rights and protection of workers who work abroad and their families. 7. providing special shelter for female workers who experience legal problems, such as victims of exploitation rape. so far, the shelters used 300 anis widyawati jils 3 (2) november 2018, 291-304 http://journal.unnes.ac.id/sju/index.php/jils by indonesian migrant workers, both those who fled their employers and victims of crime, are still in one place 8. special assistance from the indonesian embassy in reporting cases involving indonesian women migrant workers such as exploitation rape to the local state police. 9. protecting the rights of migrant workers who are victims of exploitation rape from the beginning of the case, from investigation to trial. 10. providing special health services for women workers who are victims of exploitation rape. 11. there is a form of compensation for victims committed by employers or recipient countries of pmi. 12. increasing the number and scope of the attaché geography at the indonesian embassy abroad. 13. ensure that the freedom of associated workers is respected so that they can form associations that support their culture and advocacy that supports their rights abroad. 14. strengthen the labor inspection system to provide protection for the rights of all workers to both migrants and non-migrants. 15. adding task force services to indonesian migrant workers in each indonesian embassy by including special employees from bp2tki/bp3tki, because at this time only hong kong has a task force for pmi services. 16. the indonesian embassy forms an association of migrant workers. as in malaysia there are many informal pmi regional associations, which communicate/submit tki complaints to indonesian embassy officials as a means to assist them (workers). through a partnership with the indonesian embassy, the union of indonesian migrant workers can help monitor work conditions more effectively and notify the embassy if problems occur in all sectors and urban or rural areas. migrant workers who are also part of this union, especially in rural areas in malaysia, can submit their complaints to the indonesian embassy without the knowledge of their employers. 17. try to abolish the contract that contains all documents such as the passport and visa held by the employer until the end of the contract. 18. remove illegal recruitment and through brokers by increasing supervision and facilitation of recruitment activities and increasing the involvement of district and provincial level governments. 19. ensure that migrant workers participate in certified orientation seminars on destination countries prior to departure without charge or a small fee for themselves. the seminar was carried out by each local government prior to the departure of migrant workers. this seminar needs to include information about culture, language, social norms and labor laws, labor rights, assistance available abroad, knowledge of finance and use of the insurance system. 301 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils the existence of preventive and repressive efforts from the government in dealing with problems such as the exploratory rape of indonesian female labor is one form of protection that has gradually been sought by the indonesian government to fulfill the rights of victims of exploitation rape itself. ilo (2010) also underlined that the need for diplomatic missions from the indonesian government to be carried out related to the issue of protection for indonesian migrant workers, which that indonesian diplomatic missions in destination countries are truly stakeholders and providers of protection for migrant workers, but it is very important for the governments of destination countries to take responsibility for the welfare and protection of workers in their countries. workers should be given the same terms and conditions in work (such as hours of work, periods of rest, wages, and access to health services), and similar legal protections to workers of their citizens. the international conventions on migrant workers that have been agreed upon by several countries including indonesia have actually opened up opportunities for the indonesian government towards pmi recipient countries for cases that have happened to pmi, because countries that are subject to the convention must submit to the mechanisms contained in the convention one of which includes legal protection for foreign migrants. but until now, it is our country's legal system that is still the barrier that makes it difficult to do so. where, as long as the recipient country of pmi has not yet participated in ratifying migrant workers' conventions, we also must submit to the applicable law in that country if there are legal cases that afflict indonesian workers. the lack of certainty that regulates the protection of indonesian citizens who are outside the territory of the republic of indonesia and who experience legal problems has made the indonesian government a loophole that should have been properly utilized does not work optimally. furthermore, an active role in conducting diplomatic efforts for cases such as trafficking in persons, deprivation of human rights, and sexual harassment from indonesian embassies abroad which is a reflection of the state's representation in providing protection for indonesian citizens is very necessary. to realize a common goal, the active role of all parties related to this issue is needed, both from embassies, consular officials, embassy officials, foreign ministries, the ministry of manpower and transmigration, bnp2tki, bp3tki, victims and communities in supporting the implementation of protection for victims of acts criminal. in the future, taking into account the number of female workers sent abroad which is increasing every year and balanced with all the risks that will be faced by the female workforce, the government continues to be demanded to be responsive to the consequences that women workers will experience by providing protection law in accordance with the mandate of the 1945 constitution for all indiscriminately, whether indonesian workers who work legally or who work illegally. 302 anis widyawati jils 3 (2) november 2018, 291-304 http://journal.unnes.ac.id/sju/index.php/jils conclusion it is emphasized and concluded that the urgency in legal protection by the government for indonesian workers who work abroad and become victims of criminal acts at this time prioritizes the fulfillment of victims' rights who work legally abroad but also cannot be fully implemented properly, due to differences legal system with tki recipient countries that do not necessarily want to protect the rights of migrant workers who experience unpleasant treatment from their own citizens. our country must comply with the laws of the recipient country. therefore the efforts made by the indonesian government at this time in protecting its citizens in this case are migrant workers who are victims of criminal offenses only limited to diplomatic cooperation with recipient countries. indonesian migrant workers (pekerja migran indonesia, pmi) who do not have a protection agreement for indonesian workers, whereas for migrant workers who work illegally the government has not been able to fully protect the rights of victims who have experienced criminal acts. legal protection provided by the government to female workers who work abroad and experience rape either committed by their employer or not the same as indonesian female workers who are victims of criminal acts. the legal protection model for migrant workers currently emphasizes the fulfillment of victims' rights who work legally abroad such as obtaining legal assistance from a local lawyer appointed by the ambassador of the republic of indonesia in the country receiving the pmi, mentoring by psychologists and clergy, bringing the families of victims, compensation, and insurance claims, whereas for pmi who work illegally the government has not been able to fully protect the rights of the victims. legal protection provided by the government to pmi who work abroad and become victims 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concerning the placement and protection of indonesian workers abroad (indonesian migrant workers law), undang-undang nomor 39 tahun 2004 tentang penempatan dan perlindungan tenaga kerja indonesia di luar negeri. law number. 13 of 2006 concerning the protection of witnesses and victims, undang-undang nomor. 13 tahun 2006 tentang perlindungan saksi dan korban. law number 13 of 2003 concerning employment, undang-undang nomor13 tahun 2003 tentang ketenagakerjaan. ratification of the united nations convention on the protection of the rights of migrant workers and members of their families (the migrant workers convention of 1990). ramdhani, jabbar. “ada ratusan tki terancam hukuman mati, terbanyak di malaysia”, online nesws, 19 march 2018, retrieved from https://news.detik.com/berita/d-3924242/ada-ratusan-tki-terancamhukuman-mati-terbanyak-di-malaysia rahardja, darwin. “wni dihukum mati di saudi, dilema buat indonesia?” online news, 15 april 2015, retrieved from https://www.bbc.com/indonesia/forum/2015/04/150415_forum_ar ab_hukum_mati, ratya, mega putra. “beragam aduan tki, kekerasan majikan hingga tak punya ongkos pulang”. online news. 29 september 2017, retrieved from https://news.detik.com/berita/3664486/beragam-aduan-tkikekerasan-majikan-hingga-tak-punya-ongkos-pulang situmorang, basani. “laporan pengkajian hukum tentang tanggungjawab lembaga pengerah tenaga kerja (pptkis) dalam pemenuhan hakhak tenaga kerja”. research report, jakarta: national legal system research and development center national law development agency, ministry of law and human rights republic of indonesia, 2012, retrieved from https://www.bphn.go.id/data/documents/pkj_2012_-_1.pdf spaan, ernst, and ton van naerssen. “migration decision-making and migration industry in the indonesia–malaysia corridor”. journal of ethnic and migration studies, 2017, 44(4): 680–695. doi:10.1080/1369183x.2017.131552. https://news.detik.com/berita/d-3924242/ada-ratusan-tki-terancam-hukuman-mati-terbanyak-di-malaysia https://news.detik.com/berita/d-3924242/ada-ratusan-tki-terancam-hukuman-mati-terbanyak-di-malaysia https://www.bbc.com/indonesia/forum/2015/04/150415_forum_arab_hukum_mati https://www.bbc.com/indonesia/forum/2015/04/150415_forum_arab_hukum_mati https://news.detik.com/berita/3664486/beragam-aduan-tki-kekerasan-majikan-hingga-tak-punya-ongkos-pulang https://news.detik.com/berita/3664486/beragam-aduan-tki-kekerasan-majikan-hingga-tak-punya-ongkos-pulang https://www.bphn.go.id/data/documents/pkj_2012_-_1.pdf jils (journal of indonesian legal studies) volume 5(1) 2020 95 available online at http://journal.unnes.ac.id/sju/index.php/jils review article relevance of criminal law formulation in the law of domestic violence elimination in indonesia dewi setyowati1, emmilia rusdiana2 1faculty of law, universitas hang tuah surabaya, indonesia 2faculty of law, universitas negeri surabaya, indonesia dewi.setiyowati@gmail.com submitted: november 12, 2019 revised: april 15, 2019 accepted: april 30, 2020 abstract violence against women is becoming more and more with specific domestic violence, as well as the cause hidden behind divorce. the issue of domestic violence is arranged by the law number 23 of 2004 on the elimination of domestic violence which contains a summary of criminal act in article 44 to article 53. this study attempts to analyze the philosophy of regulation of domestic violence in indonesia and the political law of the law number 23 year 2004 on the elimination of domestic violence is related to the principles in the formulation of criminal law. this research is a normative legal research, and was obtained by studying documentation, discussion, and literature study and with collection data is literature study and analyzed prescriptively. the authors believe that the household paradigm that is in accordance with the objectives of this law is to realize the integrity of households, and it implies the formulation of criminal law is not appropriate, so it is a manifestation of overcriminalization/ penalization. keywords: domestic violence; politics of law; criminal law formulation; elimination of domestic violence nationally accredited journal (sinta 2) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue 1, may 2020 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils 96 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 95 table of contents ………………………………...………….….. 96 introduction ………………………………………………………. 96 1. domestic violence in indonesia …………………………………….. 98 2. the political law of the law number 23 of 2004 on the elimination of domestic violence …………………………………... 103 3. method ………………………………………………………………... 106 domestic violence elimination: problems and challenges ………………………………………………………….. 108 the political law of the formulation of criminal law ……………………………………………………… 115 conclusion ……………………………………………………..…… 120 references …………………………………………………………… 120 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. how to cite: setowati, d., & rusdiana, e. (2020). relevance of criminal law formulation in the law of domestic violence elimination in indonesia. jils (journal of indonesian legal studies) 5(1), 95-124. doi: https://doi.org/10.15294/jils.v5i1.35362 introduction the position of husband and wife in a household, provides a limitation that husband and wife have an equal position in accordance with the roles, rights and obligations of each without having to look at the biological status between the two.1 the husband cannot negate the role and position of the wife and the wife cannot negate the role and position of the husband. 1 alimuddin, penyelesaian kasus kekerasan dalam rumah tangga di pengadilan agama 47-50 (2014). http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/jils.v5i1.35362 jils (journal of indonesian legal studies) volume 5(1) 2020 97 available online at http://journal.unnes.ac.id/sju/index.php/jils husband and wife are the main actors in building a happy and eternal home. violence in any form and carried out by anyone in the household sphere, is not only contrary to the main purpose of marriage, but violence in any form and committed by anyone in the household sphere is an act that violates the constitutional rights (article 28b of the 1945 constitution of the republic of indonesia in 1945 ) and demeaning the dignity of humanity (article 28 g of the 1945 constitution of the republic of indonesia).2 constitutionally marriage as stated in the preamble of act number 23 year 2004 on the elimination of domestic violence (hereinafter as domestic violence elimination act), a letter asserts: that every citizen has the right to a sense of security and freedom of all forms of violence in accordance with the philosophy of pancasila and the constitution of the republic of indonesia year 1945. intended to form families and continue offspring (children). every descendant (child) has the right to survival, growth and development and is entitled to protection from violence and discrimination. the state is obliged to guarantee that every person in the scope of the household receives personal protection, honour, dignity, and property under his control, and is entitled to a sense of security and protection from the threat of fear to do or not do something, in managing and managing his household. marriage ideologically, the intention is the whole values of the principles of pancasila, must become a basic ideology in building the direction of the life of the nation and state through the family. the family institution is a reflection of the state and nation's institutions. this is a form of worship for husband and wife to their lord. marriage is a method for husband and wife to build and maintain human values to form a civilized household. marriage is a medium to unite differences in the nature, character between husband and wife in a harmonious household frame. marriage is a means to manifest wisdom and wisdom as a basis in building emotional maturity between husband and wife. marriage is an embodiment of a just and prosperous life order through the household. domestic violence is basically often implemented by the husband against his wife, the husband and wife to helpers and others. in terms of the place of occurrence, physical and psychological violence occurs in the 2 the 1945 basic constitution of republic of indonesia [hereinafter the 1945 constitution]. http://journal.unnes.ac.id/sju/index.php/jils 98 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils household or outside it. in terms of the offender, physical and psychological violence in the household can be distinguished between adult offender (husbands, wives, domestic helpers) and adults with children (parents to children and conversely). based on the 2018 report that the national commission on violence against women showed that the most prominent types of violence against women are domestic violence (personal domain) which reached 71% (9, 609, and the most prominent violence was physical violence 3, 982 cases (41%), ranked first followed by sexual violence 2, 979 cases (1%), psychic 1, 404 (15%) and economics 1, 244 cases (13%) for domestic violence / personal relations, violence against wives was ranked first 5, 167 cases (54% ) and then the third largest courtship violence after violence against children was 1, 873 cases, and then the third largest courtship violence after violence against children was 1, 873 cases.3 meanwhile, domestic violence cases often became hidden behind the divorce case, this is at least indicated by the data of the religious court board at indonesian supreme court's which records 203, 507 divorce cases that have received the deed divorced throughout 2012. of the total cases, the cause of divorce is a domestic violence case which is generally not criminally processed. like unhealthy polygamy (23%), there is no harmony (18%), economic factors (16%), no responsibilities and others (15%). muslim women victims who submit divorce through the religious courts often choose not to process the domestic violence in the general courts for various reasons. among others, because they chose to immediately be free from the violence of their husbands; or reluctant to deal with two judicial processes that will take a lot of time, cost and energy.4 i. the domestic violence in indonesia the root cause of violence against women is a culture of male domination.5 in this structure of domination violence is often used by men to win 3 hibnu nugroho, tergerusnya ruang aman perempuan dalam pusaran politik populisme 35-44 (2018) 4 komnas perempuan, korban berjuang, publik bertindak: mendobrak stagnansi sistem hukum. catatan ktp tahun 2012, 58-67 (2013) 5 muladi, kapita selekta peradilan 64-70 (1995); muladi & barda nawawi arief, teori-teori dan kebijakan pidana (pidana dan pemidanaan) 12-15 (1992) [hereinafter muladi & arief, teori-teori dan kebijakan pidana]. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 99 available online at http://journal.unnes.ac.id/sju/index.php/jils dissent, to express dissatisfaction, to prevent future deeds and sometimes to simply promote it. and all forms of violence are often a reflection of the patriarchal system (shaped by patriarchy). in addition, the cultural root approach in practice is also detrimental to women. here men (husbands) feel superior and have power over women (wives). violent crimes are universal, which can occur anywhere, anytime and can befall anyone, even the effects are the same, namely physical and nonphysical suffering, can affect both men and women. violence against women has grown in line with the growth of human culture. however, this has only been a concern of the international community since 1975. according to article 1 of the declaration of the united nations in 1993 states: the definition of violence against women is all forms of gender-based violence that cause or will result in pain or suffering against women both physically, sexual, psychological, including threats, restrictions on freedom, coercion, whether occurring in public or domestic areas (violence against gender-based women). violence against women is an act or attitude carried out with a specific purpose so that it can harm women both physically and psychologically.6 another important thing is that an incidental event (accidental) is not categorized as violence even though it causes harm to women. the above understanding does not indicate that the offenders of violence against women are only men, so even women can be categorized as offenders of violence.7 domestic violence, especially abuse of wives, is one of the causes of chaos in society. various research findings of the community that wife abuse does not stop with the suffering of a wife or child alone, a series of sufferings that will spread outside the scope of the household and then colour the lives of our community.8 according to mansour fakih, violence is an attack or invasion of the physical and integrity of mental integrity of a person's psychology.9 violence that occurs in the household, especially against wives is often 6 herkutanto, kekerasan terhadap perempuan dalam sistem hukum pidana, dalam buku penghapusan diskriminasi terhadap wanita 267-268 (2000) 7 id. 8 ciciek farha, ikhtiar mengatasi kekerasan dalam rumah tangga belajar dari kehidupan rasulullah saw 22-25 (1999). 9 mansour fakih, analisis genderdan transformasi sosial 67-73 (1995). http://journal.unnes.ac.id/sju/index.php/jils 100 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils found, even not a small amount. of the many violations that occur only a little can be resolved fairly, this happens because in society there is still a growing view that domestic violence remains a secret or a household disgrace that is very inappropriate if raised on the surface or is not fit for consumption by the public. law number 23 of 2004 concerning elimination of domestic violence, provides an understanding of domestic violence, namely: every act committed against a person, especially a woman, which results in physical, sexual, psychological, and/or neglect or physical misery of the household, including threats to commit domestic violence, including threats to commit acts, coercion or deprivation of liberty unlawfully within the scope of the household (article l paragraph (1) of the domestic violence elimination act. physical violence is an act that results in pain, illness or serious injury (article 6). psychic violence is an act that results in fear, loss of selfconfidence, loss of ability to act, helplessness, and/or severe psychological suffering on a person (article 7) sexual violence is any act in the form of forced sexual relations, forced sexual relations in an unnatural and / or improper manner. preferably, the coercion of sexual relations with others for commercial purposes and/or a specific purpose (article 8). household neglect is someone who neglects people within the scope of his household, whereas according to the law in force for him or because of agreement or agreement, he is obliged to give life, care, or care to these people, and everyone who causes economic dependence by limiting and/or prohibit decent work inside or outside the home so that the victim is under the control of the person (article 9). the parties included in the scope of the household are husband, wife, children (including adopted children and stepchildren), in-laws, in-laws, in-laws and in-laws, as well as people who work to help the household and live in the household (domestic workers). the 85th general assembly on december 20, 1993, the united nations endorsed the declaration of anti-violence against women, which stressed that violence against women was a violation of human rights. article 1 of the declaration provides an understanding of violence against women, namely: every action based on gender differences results in or may result in women's physical, sexual or psychological misery or suffering, including the threat of certain actions, coercion or deprivation of liberty arbitrarily, whether it happens in public or in private life . http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 101 available online at http://journal.unnes.ac.id/sju/index.php/jils the declaration on the elimination of violence against women which was adopted at the general assembly of the united nations in 1993, gave a moral obligation to the republic of indonesia as a member of the united nations to accept the declaration.10 the objective of criminalization is to carry out the supporting function of the general criminal law function to be achieved as the ultimate goal is the realization of social welfare and protection (social defence and social welfare). the purpose of punishment specifically can be seen from the opinion of prof. roeslan saleh regarding the three reasons that criminal law and criminal law are still needed, especially the third reason, namely: criminal influence or punishment is not merely aimed at the criminal, but also to influence people who are not evil, namely citizens who obey the norms of society.11 the opinion above it is clearly seen that the purpose of punishment / giving a criminal is in addition to the criminal himself but also for the general public to be obedient to legal norms. determined the purpose of punishment contained in the intention that the crime imposed in accordance with the circumstances of the convicted so as to achieve the goal, in addition to this criminal system is a system that aims (purposive system). another reason for the stipulation of the purpose of criminal punishment/granting criminal is the limitations of the criminal sanction itself as stated by hl packer that the criminal sanction is at once main guarantor and main threat of human freedom. used providently and humanely it is guarantor; used indiscriminately and coercively, it is a threat.12 the above statement implicitly recommends that the purpose of punishment be determined so that the criminal sentence imposed can serve as a guarantor for the purpose of criminal law as a means to achieve the protection and welfare of the community and also as a guarantor there is no decrease in the degree of humanity / dehumanization in criminal conduct. 10 achie sudiarti luhulima & kunthi tri dewiyanti, pola tingkah laku sosial budaya dan kekerasan terhadap perempuan 108-110 (2000) 11 barda nawawi arief, teori-teori dan kebijakan pidana: kebijakan penanggulangan kejahatan dengan hukum pidana 153-155 (1992) [hereinafter arief, teori dan kebijakan pidana]; muladi & arief, teori-teori dan kebijakan pidana, supra note 5, at 50-51. 12 id. http://journal.unnes.ac.id/sju/index.php/jils 102 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils determining the objectives and guidelines for the provision of crime must be taken into consideration by judges in bringing down the criminal so that the judge's decision can be read by other people (the public) and in particular by people with an interest in the case. by leo polak in his book de zin der vergelding, that criminal law is the saddest part of the law. because he does not know both the basis and limits—both the purpose and size.13 in general, the objectives of punishment can be distinguished as follows: a. retaliation, ruling or retribution/absolute b. influence people's behaviour for the protection of society.14 to determine the goals and guidelines for criminalization, it cannot be separated from the purpose of punishment which has been the reason for justification, while the objective is often called the traditional goal of punishment which is retaliation, rewarding or retributive. the purpose of retributive punishment is based on the justification that every violation of law must be punished because it is a claim of justice and a criminal constitutes a negation der negation denial above denial.15 crime is an absolute result that must exist as a revenge against people who have committed crimes and this is merely to fulfil a sense of justice, so this theory is also called the absolute theory whose goal is to improve the offenders, in improving the offenders this includes various purposes among others carry out rehabilitation, and re-socialize the offender and protect him from unlawful arbitrary treatment. as a means of community protection (social defences) penalties contain four aspects that will determine the purpose of punishment, namely: a. seen from the point of view of the need for community protection against anti-social acts that harm and endanger the community, an opinion or theory arises that the purpose of criminal and criminal law is crime prevention. b. seen from the point of view of the need for community protection against the dangerous nature of the person (the offender, an opinion arises which states that the purpose of the criminal is to correct the offender. c. viewed from the need for public protection against the abuse of power in using criminal sanctions or reactions to criminal offenders, it is said that 13 sudarto, kapita selekta hukum pidana 79-82 (1986). 14 id. 15 muladi & arief, teori-teori dan kebijakan pidana, supra note 5, at 66-68. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 103 available online at http://journal.unnes.ac.id/sju/index.php/jils the purpose of criminal and criminal law is to regulate or limit the authority of the authorities as well as members of the community in general d. another aspect of community protection is the need to maintain a balance or harmony of various interests and values that are disturbed due to crime. criminal law is to maintain or restore the balance of the community.16 problem of goals and guidelines for crimes becomes a concern in the renewal of the criminal law as a result of efforts to pay more attention to factors related to human rights and making criminal operational and functional. in this regard, in formulating goals and guidelines for criminalization in the renewal of the aspired criminal system is inseparable from the values contained in the principles of the indonesian nation's philosophy so that it can describe a criminal system, namely the pancasila criminal system. with the pancasila criminal system is in imposing a crime against the offenders of crime related to the criminal justice subsystem, namely: a. number or duration of criminal threats b. alleviation and criminal charge c. the criminal formulation and application should always be oriented towards the pancasila principles, thus it is hoped the realization of the criminal system which prioritizes things that are humanistic and avoids the occurrence of dehumanization (a decrease in the degree of humanity).17 ii. the political law of the law number 23 of 2004 on the elimination of domestic violence domestic violence cases are enforced by the law number 23 of 2004 concerning the elimination of domestic violence. in which the law contains the formulation of criminal provisions in article 44 through article 53. the formulation of the criminal provisions does not provide a description of the meaning domestic violence elimination act prioritizes 16 arief, teori dan kebijakan pidana, supra note 10, at 88-90 17 id. http://journal.unnes.ac.id/sju/index.php/jils 104 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils the prevention and maintenance of harmonious and prosperous household integrity (restorative) but instead affirms the meaning that domestic violence elimination act prioritizes the prosecution of offenders of domestic violence. both are the formulation of domestic violence elimination act objectives in article 4, so that there is a conflict of norms. the principles regarding the formulation of criminal law. this discussion requires the fulfillment of the principles regarding the formulation of criminal law as a strategy for the formulation of criminal law, namely: a. the principle that the reasonable loss, while this loss has a moral aspect (morality), individual-group-collectivity), and it must be public issue. b. the principle of tolerance of these actions is an assessment of the occurrence of losses; it is based on respect freedom for individual and responsibility. c. the principle of subsidiarity (before the act is declared a criminal act, it is necessary to note whether the legal interests violated by the act and it can still be protected in other ways because the criminal law is ultimum remedium. d. the principle of proportionality (a balance between the losses by the principle of tolerance and with the reaction to the crimes given). e. the principle of legality, the legal interests to be protected are clearly related to the principle of error). f. the principle of practical use, and effectiveness with regard to the possibility of its enforcement and its impact on the general of the prevention (practical use and effectiveness).18 the term criminalization is used in this article to describe a web of state policies and practices related to welfare19, in other hand, an understanding of the aims of the criminal law. this is turn requires an understanding of where criminal law fits into the overall legal order. and this further requires an understanding of the liberal democratic state 18 muhammad najih, politik hukum pidana: konsepsi pembahruan hukum pidana dalam cita negara hukum 37-40 (2014). 19 kaaryn gustafson, the criminalization of poverty. 99 j. crim. l. & criminology. 643, 650-658 (2009). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 105 available online at http://journal.unnes.ac.id/sju/index.php/jils within which the legal order exists.20 there are several different kinds of criminalizing policies and practices. the general principles of criminalization, such as punishment theory and the role of moral wrongdoing. main lines of criminalization theories which tend to focus on the issues of harm, offence, paternalism and side constraints.21 there are two over aching categories of criminalization, formal criminalization and substantive criminalization. formal criminalization refers to making something a crime ‘on the books’ whereas substantive criminalization accounts for non-formal changes that occur through the exercise of discretion by, for example, police, prosecutors, and judges. chalmers & leverick reach three conclusions, first, that is a continuing issue of subordinate legislation creating new crimes without any democratic safeguards, and third, that the disparate sprouting of so many criminal offences in such varied places makes fair making nearly impossible to achieve.22 therefore, this study attempts to find out the philosophy of regulating of domestic violence in indonesia. this study also asses the political law of the law number 23 of 2004 on the elimination of domestic violence is related to the principles in the formulation of criminal law. this research is intended to analyzed concerning how is the philosophical factor of regulating of domestic violence in indonesia and how is the political law of the law number 23 of 2004 on the elimination of domestic violence is related to the principles in the formulation of criminal law? 20 paul mcgorrery & marilyn mcmahon, prosecuting controlling or coercive behaviour in england and wales: media reports of a novel offence. 94 criminology & criminal justice. 1, 12-14 (2009); neil boister, ‘transnational criminal law’? 14 ejil. 953, 960-965 (2003). 21 simester a.p. & von hirsch a., crimes, harms and wrongs 275-283 (2011). 22 james chalmers & fiona leverick. “quantifying criminalization”, in criminalization: the political morality of criminal law, r.a. duff, lindsay farmer, s.e. marshall, massimo renzo, & victor tadros (eds), 54-79 (2004). http://journal.unnes.ac.id/sju/index.php/jils https://journals.sagepub.com/doi/abs/10.1177/1748895819880947 https://journals.sagepub.com/doi/abs/10.1177/1748895819880947 106 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils iii. method a. design of the study b. method of data analysis legal research is intended to explore and seek the truth.23 the formulation of sanctions in the domestic violence elimination act becomes library material or legal material becomes library material or primary legal material.24 this research is a normative legal research, which 23 sugeng istanto, penelitian hukum 43-45 (2007). 24 soerjono soekanto, pengantar penelitian hukum 112-115 (1986) [hereinafter soekanto, pengantar penelitian hukum]; soerjono seokanto & sri mamuji, metode penelitian hukum 75-80 (2003) [ hereinafter soekanto & mamuji, metode penelitian hukum]. analysis of the meaning of the paradigm and ideology of violence in the domestic violence elimination act in indonesia m analysis of ideological qualifications and household paradigms legislation in indonesia (primary legal material) the formulation of criminal law is based on the principles of criminal law seeking justice and truth on the formulation of criminal provisions in the domestic violence elimination act legal & statute approach: 1. the 1945 constitution 2. law number 1 of 1974 concerning marriage (marriage act) 3. domestic violence elimination act concept approach (secondary legal material): 1. the concept of national ideology and domestic violence. 2. the political concept of criminal law concerning formulations of domestic violence a philosophical approach alignment of the substance between justification paradigm and ideology of households and domestic violence, with the morality of the ideology of pancasila law and conflict in the formulation of criminal provisions in domestic violence http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 107 available online at http://journal.unnes.ac.id/sju/index.php/jils provides a prescription analysis. the research uses legal approach, the concept and philosophy. the philosophy is to seek and think of the essence of truth profusely. the special character of the philosophical study of legal science is to find the essence law and justice. in this legal research, primary legal material becomes very important in the context of basic orientation, with secondary legal material and tertiary as a means to enrich the analysis of studies in this.25 this research was obtained by studying documentation, discussion, and literature study. the documentation technique to trace the provisions of the laws and regulations in indonesia which regulates domestic violence sanctions, is then thoroughly reviewed to obtain a formulation of domestic violence sanctions, so that prescriptions and formulations of criminal sanctions can be obtained. the documentation technique is used to identify and qualify pancasila values and relevant provisions. literature techniques to find concepts, teachings, doctrines, philosophies, and principles of law, which are the work of jurists. these three techniques or methods will result in justification of the household, family, paradigm and ideology which form the basis of values, then used as a basic direction in finding formulations of criminal sanctions. this research will provide a prescription26 about the justification of sanctions in domestic violence which now have criminal sanctions for domestic violence. this study is the flow of thought from the view of legal research using qualitative juridical analysis methods,27 and data analysis in legal research is carried out in a systematic, explosively, and prescriptive manner.28 therefore, analysis of prescriptive and formulative legal materials 25 sidharta, penelitian dalam perspektif normatif 25-30 (2010); bambang sunggono, metodologi penelitian hukum 55-58 (2007); soekanto, pengantar penelitian hukum, supra note 23, at 116; soekanto & mamuji, metode penelitian hukum, supra note 23, at 81-82. 26 peter mahmud marzuki, penelitan hukum 33-37 (2008) 27 maria sw sumardjono, pedoman pembuatan usulan penelitian sebuah panduan dasar 48-53 (2001). 28 jan gijssels & mark van hoecke, wat is rechtsteorie? 245-255 (1982). rechwetenschap by jan gijssels and mark van hoecke is translated in english as jurisprudence. when translated literally, rechwetenschap means science of law. the term was avoided because the term science can be identified with empirical studies. in fact, law is a more normative study. the term rechtswetenschap [dutch] in the narrow sense is legal dogmatics or the teaching of law [de rechtsleer] whose job is the description of positive law, systematization of positive law and in certain cases also explanation. thus, the dogmatics of the law are not value-free but loaded with values. rechtswetenschap in a broad sense includes legal dogmatics, legal theory [in the strict sense] and philosophy of law. rechtstheorie also contains narrow and broad meaning. in the http://journal.unnes.ac.id/sju/index.php/jils https://www.google.co.id/search?hl=id&tbo=p&tbm=bks&q=inauthor:%22jan+gijssels%22&source=gbs_metadata_r&cad=3 https://www.google.co.id/search?hl=id&tbo=p&tbm=bks&q=inauthor:%22mark+van+hoecke%22&source=gbs_metadata_r&cad=3 108 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils primary, secondary and tertiary in their entirety, depth and overall.29 the analysis was carried out on the whole substance of the laws and regulations that were reviewed. the analysis can give significant meaning to the analysis of legal material, which can explain the pattern of description, and look for relationships between the dimensions.30 prescriptions about the formulation of criminal sanctions in statutory regulations, an analysis of legal materials with a hermeneutic perspective, interpretations, including interpretations: authentic, grammatical, systematic, sociological, teleological, functional or futuristic domestic violence elimination: problems and challenges violence in the household is a violation of human rights, crimes against human dignity and forms of discrimination that must be removed (consider the letter b of domestic violence elimination act). households as a form of marriage institution must be able to be a catalyst in preventing all forms of violence. violence in the perspective of the household must be seen as a problem that can threaten the formation of a happy and eternal family.31 narrow sense rechtstheorie is a layer of legal science which lies between the dogmatics of law and the philosophy of law. legal theory in this sense is the science of legal explanation [een verklarende wetenschap van het recht]. for more comprehensive comparison, please also see markus p. beham, rechtstheorie. 20 austrian review of international and european law online. 452, 452-253 (2018); bernd rüthers, christian fischer, & axel birk, rechtstheorie 115-119 (2018); jeffrie g murphy, philosophy of law: an introduction to jurisprudence, 245-255 (2018). 29 yohanes sogar simamora, prinsip hukum kontrak dalam pengadaan barang dan jasa oleh pemerintah, diss (2005). 30 jhony ibrahim, teori dan metodologi penelitian hukum normatif 27-30 (2006). 31 frank e. hagan & leah elizabeth daigle, introduction to criminology: theories, methods, and criminal behavior 233-246 (2019); barbara krahé, violence against women. 19 current opinion in psychology. 6, 7-8 (2018); mona lena krook, violence against women in politics: a rising global trend. 14 politics & gender. 673, 674-675 (2018). furthermore, the term violence is used to describe behavior, whether overt, or covert, whether offensive or defensive, accompanied by the use of force to others. law no 23 of 2004, defines domestic violence is any act against a person especially women, which results in physical, sexual, psychological, and/or neglect of the household suffering or suffering, including threats to commit acts, coercion or deprivation of liberty unlawfully in the scope of the household. indeed, there is no single and clear definition related to domestic violence. http://journal.unnes.ac.id/sju/index.php/jils https://edge.sagepub.com/hagan10e https://edge.sagepub.com/hagan10e jils (journal of indonesian legal studies) volume 5(1) 2020 109 available online at http://journal.unnes.ac.id/sju/index.php/jils the meaning of a happy and eternal family, containing the spirit that violence in the household, is contrary to domestic values inherent inherently in the meaning of inner and outer bonds between a man and a woman, as a pledge of sacred promise, in forming a family. inner and outer bonds between a man and a woman cannot be reduced to the meaning of transactional ties. inner and outer bonds become theological spirit (these are listed phrases based on the almighty god in the sense of marriage according to the provisions of the marriage law, giving justification that the value of god (theology) becomes the basic spirit in building a happy and eternal family) forming happy and eternal families, while contractual ties, are the spirit of building contractual relationships. domestic violence must be viewed in the perspective of theological spirit as a basis in building emotional relationships filled with love and affection, between a man and a woman in forming a happy and eternal family. inner and outer bonds which become the theological spirit (theological spirit accepts the concept of forgiveness in a husband and wife relationship to build a happy and eternal family. the concept of nonetheless, domestic violence is usually fundamental, including (a) physical violence, which is every act that causes death, (b) psychological violence, which is every act and speech that results in fear, loss of self-confidence, loss of ability to act and feeling of helplessness towards women, (c) sexual violence, which is every act that includes sexual harassment to force someone to have sexual relations without the consent of the victim or when the victim does not want to; and / or engaging in sexual relations in ways that are not natural or preferred by the victim; and or distance him (isolate) from his sexual needs, (d) economic violence, which is any act that restricts people (women) to work inside or outside the home that produces money and or goods; or let the victim work to be exploited; or abandon family members. see also rido matua simamora, analisis diskresi kepolisian dalam penyidikan tindak pidana kekerasan dalam rumah tangga (studi pada unit ppa sat reskrim polresta padang). 2 unes journal of swara justisia. 332, 338-340 (2019); bambang sutrisno & siti asmaul husna, perlindungan hukum terhadap isteri yang menjadi korban kekerasan dalam rumah tangga oleh suami. 7 mizan, jurnal ilmu hukum. 51, 52-53 (2019); agung budi santoso, kekerasan dalam rumah tangga (kdrt) terhadap perempuan: perspektif pekerjaan sosial. 10 komunitas. 39, 45-47 (2019); ayu setyaningrum & ridwan arifin, analisis upaya perlindungan dan pemulihan terhadap korban kekerasan dalam rumah tangga (kdrt) khususnya anak-anak dan perempuan. 3 muqoddimah: jurnal ilmu sosial, politik dan hummaniora. 9, 11-14 (2019); syaiful asmi hasibuan, kebijakan kriminal (criminal policy) terhadap anak yang melakukan kekerasan dalam rumah tangga. 7 jurnal hukum responsif. 17, 20-24 (2019): amalia r. miller & carmit segal, do female officers improve law enforcement quality? effects on crime reporting and domestic violence. 86 the review of economic studies. 2220, 2229-2236 (2019); dina afrianty, agents for change: local women’s organizations and domestic violence in indonesia. 174 bijdragen tot de taal-, land-en volkenkunde/journal of the humanities and social sciences of southeast asia. 24, 30-36 (2018); ratih lestarini, et al. the co-existence of laws regarding domestic violence case settlement: rote island, east nusa tenggara, indonesia. 20 journal of international women's studies. 165, 168-170 (2019). http://journal.unnes.ac.id/sju/index.php/jils 110 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils forgiveness is the basis for looking at domestic violence carried out in marital relations) in building a happy and eternal home, it cannot be seen as the meaning of outward ties, which can be measured using the standard of rationality in the form of division of roles on the basis of the biological characteristics of husband and wife only (gender). inner and outer bonds place the rights, obligations, and position of husband and wife in the household by using ideological standard measures, namely emotional, mental, spiritual maturity, in looking at the meaning of a happy and eternal household. domestic violence must be seen in an ideological perspective and not merely in a biological perspective. the reduction of ideological meaning is limited to biological meaning in the context of domestic violence, justified in positive law (domestic violence elimination act). that victims of domestic violence, of most whom are women, must receive protection from the state and/or society to avoid and be free from violence or threats of violence, torture, or treatment that demeans human dignity and dignity. domestic violence becomes a public problem only because it uses a biological paradigm rather than an ideological paradigm. the household is seen as a rational transactional institution. domestic violence is simplified on the surface in the form of acts and the consequences of acts that contain phenomenological violence (provisions of article 1 number 1 of the domestic violence elimination act), stated that domestic violence is any act against a person especially a woman, which results in misery or suffering from physical, sexual, sexual misery, psychological, and/or neglect of households including threats to act, forcing, or deprivation of liberty unlawfully within the scope of the household. the domestic violence, can be done by anyone, including by men, women within the family circle. simplification provisions of positive law which simplify the problem of domestic violence can only be carried out mainly by men with female victims, or in other words domestic violence is dominantly only possible by a husband to his wife, is evidence that the domestic violence elimination act only sees the problem of domestic violence gap is a biological problem and negates the main problem which is an ideological problem. violence in the household must be viewed as an ideological problem, therefore the root of the problem is not only seen in the perspective of the form of acts of violence, but the fundamental is the main cause of domestic http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 111 available online at http://journal.unnes.ac.id/sju/index.php/jils violence stemming from the inability of a man with a woman, in building and forming a happy family and eternal. the emotional, psychological, physical, and spiritual maturity of a man and a woman in building inner and outer bonds, which is the theological spirit in a household, is more important to be the basis for seeing domestic violence. domestic violence is a result of the inability of a man and a woman to interpret the bond physically and spiritually in forming a happy and eternal family ideologically. an ideological perspective in viewing domestic violence, prioritizing aspects of preventing domestic violence (provision of article 1 number 2 of the domestic violence elimination act, states: elimination of domestic violence is a guarantee given by the state to prevent the occurrence of domestic violence, cracking down on offenders of violence in the household, and protecting the violence in the household. this provision contains a blurring of norms, on the one hand the state prevents violence in the household, but the spirit and provisions of the next article contain the meaning of cracking down on the offenders. the state protects the victim but in the provisions of the following article provides severe conditions for victims can be protected by the state. biological perspective in seeing domestic violence prioritizes the aspect of enforcement in the event of domestic violence. the ideological paradigm in viewing domestic violence, will prioritize wholeness and happiness of the household, while the biological paradigm in viewing domestic violence, will prioritize repression as a repressive way. the ideological paradigm views that the main cause of domestic violence is the foundation and direction in maintaining the integrity and happiness of the household, suffering sanctions are the last choice used in order to maintain the integrity and happiness of the household. the ideological paradigm prioritizes recovery (restoration) in preventing and crack down on domestic violence. the biological paradigm, seeing severe sanctions as the most important way in combating domestic violence, deploying and reprising offenders of domestic violence is the most important choice. the provisions in the domestic violence elimination act contain norm conflicts, which in principle are declared non-discrimination, but in the preamble, it still emphasizes discrimination, which says that the dominant victims are mainly women while the offenders are mainly men. http://journal.unnes.ac.id/sju/index.php/jils 112 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils the preamble as a philosophical foundation of the domestic violence elimination act should be the direction and foundation in formulating the principle. the principle was born from a philosophical foundation, so that the philosophical foundation became a guide in formulating the principles in the domestic violence elimination act. conflict (provisions of article 3 of the domestic violence elimination act) between the provisions of the preamble, article 1 and article 3 concerning the principle, makes the domestic violence elimination act unable to guarantee legal certainty in preventing, acting and protecting, which is the promise of the state in ensuring the elimination of violence in the household. conflict of norms is the main cause of the unclear meaning paradigm which is used in viewing domestic violence. the ideological paradigm in seeing domestic violence is more in line with the principle of non-discrimination, justice and gender equality, while the biological paradigm sees violence in the household as a gender problem, thus prioritizing a discriminatory spirit that women are the main victims and men as the main offenders. not only does this conflict of norm not guarantee legal certainty, but the conflict of norms is a determinant factor in the paradigm formulation of sanctions in domestic violence. the ideological paradigm sees sanctions against domestic violence, prioritizing prevention that puts forward restorative efforts. the biological paradigm sees severe sanctions in cases of domestic violence as the main effort by prioritizing retributive efforts. conflicts of norms and vacuum of norms in the provisions of the domestic violence elimination act, appear in the provisions of article 4 regarding the purpose of eliminating violence in households, with the provisions of articles 44, 45, 46, -53. the formulation of criminal provisions in articles 44-53, does not provide a description of the meaning that the domestic violence elimination act prioritizes the prevention and maintaining the integrity of a harmonious and prosperous household (and harmonious households restorative) restorative as the purpose for the establishment of the domestic violence elimination act as stipulated in the provisions of the formulation of article 4, but instead provides an affirmation of the meaning that the domestic violence elimination act prioritizes the enforcement of http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 113 available online at http://journal.unnes.ac.id/sju/index.php/jils as the purpose for the formation of the domestic violence elimination act offenders of domestic violence. conflict of norms between the provisions of article 4 with the provisions of articles 44 53 of the domestic violence elimination act, not only does not guarantee legal certainty, but the conflict of norms provides a confirmation that the domestic violence elimination act uses a biological paradigm in cases of domestic violence. paradigm domestic violence elimination act, giving priority to approaches retaliation(retributive) in view of domestic violence. the domestic violence elimination act should use the ideological paradigm for cases of domestic violence, so as to prioritize aspects of prevention by prioritizing recovery (restorative), whereby wholeness, happiness, and family welfare come first. the philosophy of regulating of domestic violence in indonesia show article 28 b paragraph (2) of the constitution of the republic of indonesia year 1945 states every child has the right to survival, growth, and development and it has the right to protection from violence and discrimination and article 28 g mandates everyone has the right forming families without being discriminated against, violence in all its forms constitutes a human rights violation, ideologically the approach to restoring and preventing is the main in cases of domestic violence. the marriage act affirms that marriage in forming a family is implement on the basis of bonding physically and spiritually, by prioritizing the restoration of harmony and integrity of the family into its theological spirit. domestic violence elimination act is implement based on the principle of respect for human rights, gender justice and equality, non-discrimination, and victim protection and the paradigm of domestic violence as explained by setyowati32 as follows. 32 dewi setyowati, reformulasi sanksi tindak pidana kekerasan dalam rumah tangga dari perspektif keadilan restorative di indonesia. diss (2018). http://journal.unnes.ac.id/sju/index.php/jils 114 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils the philosophical problems in the domestic violence elimination act, justifying gender as the main in seeing violence in the home (ontology), so that the paradigm used in viewing violence in the home is limited to biological problems by prioritizing the imposition of sanctions (epistemology) as retribution (retributive) which is intended as an attempt to enlighten (efforts axiology). the domestic violence elimination act should use an ideological paradigm, which views domestic violence as a matter of emotional, mental and spiritual maturity (ontology), by prioritizing recovery (epistemology) wholeness, happiness and family welfare being primary (restorative), criminal sanctions being the most preferred choice the end to prevent domestic violence (axiology). •build the family nondiscrimination •family ideology reflection of the personality of the nation (restorative) domestic violence paradigm in the constitution and ideology •inner birth bond (restorative) •happy and eternal family domestic violence paradigm in the marriage law •biological •sanction (retributive) domestic violence paradigm in the domestic violence law http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 115 available online at http://journal.unnes.ac.id/sju/index.php/jils the political law of the formulation of criminal law the principles regarding the formulation of criminal law. this discussion requires the fulfillment of the principles regarding the formulation of criminal law as a strategy for the formulation of criminal law.33 the principle that the reasonable loss, while this loss has a moral aspect (morality), individual-group-collectivity), and it must be public issue. an important feature of a criminal law is that it attracts a punishment or sanction. with the civil law, damages are imposed with the aim to compensate the injured party for loss suffered by criminal law. the aim is to punish the offender and deter others from carrying out the same act. the principle of tolerance of these actions is an assessment of the occurrence of losses; it is based on respect freedom for individual and responsibility. this guide refers to the meaning of tolerance defined in article 1 of the unesco declaration of principles on tolerance. thus, tolerance consists of respect, acceptance, and appreciation of the rich diversity of the cultures of our world, our forms of expression and the ways of being human. it is fostered by knowledge, openness, communication, and freedom of thought, conscience, and religion. tolerance consists of harmony 33 supra note 17, at 57-60. in fact, it was further stated that efforts to reform indonesian criminal law that internalize the values of pancasila must remain directed at the national goals to be achieved by the indonesian people as an independent and sovereign state. the criminal code, which is currently still in effect, is a legal product of the dutch east indies colonial government, which needs to be adapted to the ideology of the indonesian people, pancasila. see also mokhammad najih, indonesian penal policy: toward indonesian criminal law reform based on pancasila. 3 jils (journal of indonesian legal studies). 149, 155-156 (2018); tommy leonard, pembaharuan sanksi pidana berdasarkan falsafah pancasila dalam sistem pidana di indonesia. 5 yustisia jurnal hukum. 468, 475-476 (2016); erfandi, implementasi nilai-nilai pancasila dalam pembangunan sistem hukum pidana di indonesia. 5 jurnal ilmiah pendidikan pancasila dan kewarganegaraan. 23, 27-30 (2016); dian alan setiawan, the implication of pancasila values on the renewal of criminal law in indonesia. 5 unifikasi: jurnal ilmu hukum. 58, 60-63 (2018); pranoto iskandar, the pancasila delusion. 46 journal of contemporary asia. 723, 727-730 (2016); ira alia maerani, implementasi ide keseimbangan dalam pembangunan hukum pidana indonesia berbasis nilai-nilai pancasila. 3 jurnal pembaharuan hukum. 329, 330-332 (2016); herlambang, reformulation of criminal liability concept in criminal act of corruption in indonesia based on pancasila. 1 university of bengkulu law journal. 19, 20-24 (2016). http://journal.unnes.ac.id/sju/index.php/jils 116 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils in difference.34 it is not only a moral duty but also a political and legal requirement. tolerance, the virtue that makes peace possible, contributes to the replacement of the culture of peace. tolerance is not concession, condescension or indulgence. tolerance is, above all, an active attitude prompted by the recognition of universal human rights and fundamental freedoms of others. in no circumstances can it be used to justify these fundamental values. tolerance is to be exercised by individuals, groups, and states. tolerance is the responsibility that upholds human rights, pluralism (including cultural pluralism), democracy and the rule of law. it involves the rejection of dogmatism and absolutism and affirms the standards set out in international human rights instruments. consistent with respect for human rights, the practice of tolerance does not mean that the toleration of social justice or the abandonment is weakening of one's convictions. it means that one is free to adhere to one's own convictions and accepts that others are to theirs. it means accepting the fact that human beings, their naturally diverse appearance, situation, speech, behavior, and values, have the right to live in peace and to be as they are. it also means that one's views are not to be imposed on others.35 the principle of subsidiarity (before the act is declared a criminal act, it is necessary to note whether the legal interests violated by the act and it can still be protected in other ways because the criminal law is ultimum remedium. the intention here is not to embark on any grand tour of subsidiarity, as this principle has already been extremely well dissected in the legal doctrine.36 criminal law must be placed as ultimum remedium (weapon ultimate) in tackling crimes that use a reasoning instrument, not as a primum remedium (main weapon) to overcome criminal problems. the other meaning of the principle of ultimum remidium is when the implementation of the formal criminal law must wait until the ineffectiveness of administrative law is enforced. the background to the increasing need to use the principle of subsidiarity in determining illicit actions is driven by two factors. first, the use of the subsidiarity principle 34 united national educational, scientific and cultural organization (unesco). "declaration of principles on tolerance." (1995). 35 john s russell, trial by slogan: natural law and lex iniusta non est lex. 19 law and philosophy. 433, 438-440 (2000) 36 g. t. davies, subsidiarity: the wrong idea, in the wrong place, at the wrong time. 43 common mark. law rev. 63, 65-70 (2006). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 117 available online at http://journal.unnes.ac.id/sju/index.php/jils will encourage the birth of criminal law a just. secondly, the practice of legislation has an impact negative on the criminal law system due to the existence of overcriminalization and overproduction so that criminal law becomes a loss of influence in society. the principle of proportionality (a balance between the losses by the principle of tolerance and with the reaction to the crimes given). the principle of proportionality imposes certain restrictions on law-making and enforcing authorities. the principle of proportionality which, due to its complexity and significance for the process of establishing and applying the law, requires detailed and separate discussion. the essence of the assumption of the penalty must be commensurate with the seriousness of the liver, thus indicating that it is derived from a guaranteed function of criminal law.37 the principle of legality, the legal interests to be protected are clearly related to the principle of error). the basic principle in the determination of criminalization, according to classical flow, the principle of legality has a function to limit the scope of criminal law. whereas in the modern flow the principle of legality is an instrument to achieve the goal of community protection. mens rea means the offense must be committed knowingly and with an intent to evade the prohibition or restriction. where is the mens rea is made an element of an offense is generally an indication of criminality. the requirements of a criminal act are in line with the principle of lex scripta (formulated as a written criminal law), the principle of lex certa (the formulation of clear and not multiple interpretations), and the principle of lex stricta (the rule must be interpreted narrowly and not used analogy). according to remmelink that the error indicator is the denunciation directed by the public against humans who actually can be avoided.38 while in the opinion of mezger it is a whole condition that provides a basis for personal prosecution of offenders of criminal acts. 37 joanna długosz, the principle of proportionality in european union law as a prerequisite for penalization. 7 przegląd prawniczy uniwersytetu im. adama mickiewicza. 283, 290-294 (2017) 38 jan remmerlink, hukum pidana 57-65 (2003). see also jan remmelink & derkje hazewinkel-suringa. mr. d. hazewinkel-suringa's inleiding tot de studie van het nederlandse strafrecht 178-189 (1996); jan remmelink, actuele stromingen in het nederlandse strafrecht 114-116 (1980); jan remmelink & marinus otte. hoofdwegen door het verkeersrecht 116-121 (2000). http://journal.unnes.ac.id/sju/index.php/jils 118 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils the principle of practical use, and effectiveness with regard to the possibility of its enforcement and its impact on the general of the prevention (practical use and effectiveness). the principle of effectiveness in criminal law is a matter with deep philosophical underpinnings. it encompasses a restrictive policy stating that the criminal law should not be used if it is not effective in controlling conduct, and expansive policy stating that the criminal law should be used if it is the most efficient and cost-effective means of controlling conduct. generally, effectiveness is discussed in terms of positive or negative legitimacy. in this way, the effectiveness is viewed as a presumed filter where the limiter claims that no criminalization can be justified if it cannot be expected to be effective. nevertheless, the very notion of effectiveness as a template for criminalization is generally considered as a difficult parameter when justifying legislation. first, and in extremely general terms, it is often stated that ineffective provision would undermine the respect for criminal law systems as prevention in the question would lose much of its function. secondly, if a criminal law is too severe, as noted, it would render itself ineffective as the citizens would find it unfair (fair labeling).39 the formulation of criminal acts in the domestic violence law begins when a complaint occurs by holding a disclosure of domestic violence. this is considered by some indonesians to be taboo to be revealed to the public. the moral aspect that emerges is a person must be in a free condition both free to express his opinion or be free from violence. while the issue of the public is indicated by the existence of issues of gender that view domestic violence requires settlement. the special nature inherent in the domestic violence law has placed households as the basis of all domestic order systems that are forced to be in public problems. while the paradigm used is limited to biological problems by prioritizing sanctions as retributive which is intended as an effort to ensnare. ideally, the context of family law (domestic) is that the ideological paradigm that views recovery efforts that refer to the realization 39 ester herlin-karnell, the development of eu precautionary. 3 european criminal law review. 1, 11-13(2011). see also ester herlin-karnell, the constitutional dimension of european criminal law 217-220 (2012); ester herlin-karnell, what principles drive (or should drive) european criminal law? 11 german law journal. 1115, 11201125 (2010); ester herlin-karnell, recent developments in the area of european criminal law. 14 maastricht journal of european and comparative law. 15, 20-24 (2007). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 119 available online at http://journal.unnes.ac.id/sju/index.php/jils of a whole, harmonious, prosperous and happy family is seen as more appropriate. the method that can be proposed is by holding a bipartite, then proceed with mediation and even conciliation or arbitration. bipartite by finding both parties to the dispute. this is intended to support the law on in realizing recovery by maintaining the integrity, harmony and family welfare of the domestic violence which views that domestic violence elimination act is the same as persecution as stipulated in article 351 of the criminal code. losses if domestic violence is in the form of a criminal act, then the offender is one part of the household, so that if it involves a criminal sanction in the form of imprisonment or a fine, it will result in two losses, namely criminal sanctions and at the same time increasing the burden of the household. the legal interest in domestic violence elimination act law is the protection of one's body and one's honor. violence is indeed a disgraceful act in accordance with people's opinions and violence can be avoided by everyone. acts in the domestic violence law are not in accordance with the purpose of drafting the domestic violence law so that it does not fulfill the principle of lex scripta, the principle of lex certa, and the principle of lex stricta. the purpose of this law is to take action against offender of domestic violence and at the same time maintain the integrity of a harmonious and prosperous household. this goal should be a guideline to formulate the norms by formulating not to act as criminal acts. enforcement of the domestic violence law is not optimal because some judges' decisions in domestic violence cases show that the real form of inaccuracy in understanding the meaning of csdr is ideologically and the judge's decision is limited to describing domestic violence problems as biological problems. furthermore, a number of findings have been made by this research and study. prominent among these findings are summarized as follows: 1. regulations on the nature of the basic value of the household from inner and outer ties, and the view that the household as an institution maintains wholeness, harmony without discrimination and violence and that households are formed to create a happy, eternal family based on god. from the almighty. the paradigm for regulating domestic violence is restorative, so a happy eternal family and the formulation of violations involving criminal sanctions is inappropriate. the http://journal.unnes.ac.id/sju/index.php/jils 120 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils formulation of criminal provisions increasingly emphasizes the problem of domestic violence not appearing in the ideological spirit of theological paradigm but seen in a biological paradigm. victims are seen as objects that can recover from the consequences of domestic violence perpetrated by offenders by providing criminal sanctions, while the meaning of preventing, protecting, maintaining is not considered as the purpose of punishment. 2. the criminal law politics of the law number 23 of 2004 based on the fulfilment of the principles of the formulation of criminal law as a strategy for the formulation of criminal law shows that this regulation is a manifestation of excessive criminalization because it does not fulfil all formulations in the principles of formulating criminal law. conclusion the formulation of criminal law in the law number 23 of 2004 concerning the eradication of domestic violence has put the problem of the goals that are needed and not in accordance with the objectives of force. the problem lies not in the outcome to be agreed upon, but in consideration of the value of the outcome and the value of the individual's personal freedoms. doubt about criminal law as a powerful tool to prevent crime that causes freedom to channel revenge in the community or is supported to frighten potential offenders or offenders, but also supports to improve the offender. references afrianty, d. 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(1995). declaration of principles on tolerance. about authors dewi setyowati is a lecturer at faculty of law universitas hang tuah, surabaya, indonesia. she has been involved in many research projects, especially concerning to criminal law and penal policy in indonesia and overseas. her research interest concerning criminal law, penal policy, victimology and criminology, as well as penology issues. emmilia rusdiana is a lecturer at universitas negeri semarang (unesa). she also working as researcher and head of moot court laboratory at faculty of law universitas negeri semarang. her research interest concerning to penal policy, politics of criminal law, special criminal law, and philosophy of law. http://journal.unnes.ac.id/sju/index.php/jils 273 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils volume 3 issue 02 november 2018 jils 3 (2) 2018, pp. 273290 issn (print) 2548-1584 issn (online) 2548-1592 impersonating fishermen: illegal fishing and the entry of illegal immigrants as transnational crime yanti amelia lewerissa yanti amelia lewerissa faculty of law, universitas pattimura, ambon postgraduate program faculty of law, universitas hasanuddin, makassar  elyanti_amelia@yahoo.com table of contents introduction ………………………………………………….….. 274 the relationship of illegal fishing with the emergence of illegal immigrants as a form of transnational crime ………………………………….…….. 276 illegal immigrants in indonesia: a general condition …………………………………………………………… 281 the role of international criminal law on illegal fishing and illegal imigrants case …………. 284 conclusion ………………………………………………………… 288 reference ………….……………………………………………….. 288 copyright © 2018 by author(s) this work is licensed under a creative commons attributionsharealike 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. mailto:elyanti_amelia@yahoo.com 274 yanti amelia lewerissa jils 3 (2) november 2018, 273-290 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on june 2018 approved on september 2018 published on november 2018 illegal fishing carried out by foreign fishing vessels (kapal ikan asing, kia) and indonesian fishing vessels (kapal ikan indonesia, kii) in indonesian waters also causes other crimes such as the entry of illegal immigrants to indonesia. this writing aims to assess the relationship between illegal fishing and the entry of illegal immigrants as a form of transnational crime. the research method used is normative legal research. the sources of legal material used are primary, secondary and tertiary legal materials related to writing. the technique of collecting data through library studies and analyzed qualitatively. the results of the study show that indonesia as the largest archipelagic country in the world with 17,504 large and small islands and a length of coastline of 81,700 km 2 makes indonesia a country with abundant marine resource potential. for this reason, many foreign naval fleets have made indonesian waters as the main destination for their capture fisheries. this capture fishery company has more foreign ownership, the exploitation of marine resources that we own both legally and illegally. likewise, this also happened in the moluccas territory. as a province of the archipelago with an ocean area of 658,295 km 2 with a coastline length of 11,000 km 2, the maluku sea holds abundant potential for marine wealth. arafura sea is one of the fisheries management areas which is often the main destination for foreign-owned fishing vessels. these fresh fish from the moluccas are stolen and taken away in fresh condition directly to the area of origin of the perpetrators. illegal fishing activities not only make indonesia economically disadvantaged, but there is another problem, namely the existence of other crimes that usually follow the illegal fishing activities. one of them is the entry of illegal immigrants into indonesian territory. keywords: illegal fishing, illegal immigrant, transnational crime how to cite (chicago manual style) lewerissa, yanti amelia. 2018. “impersonating fishermen: illegal fishing and the entry of illegal immigrants as transnational crime”, journal of indonesian legal studies (jils), 3 (2): 273-290. introduction the orientation of marine development in indonesia began in 1957 which was marked by the emergence of the concept of "archipelago insight" as stated in the djuanda declaration on december 13, 1957 which claimed the territorial waters of indonesia, and kusumastanto (2003), stated that all 275 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils waters surrounding, between and connecting islands or parts of islands which belong to the plains of the unitary state of the republic of indonesia, do not consider the extent and breadth of the fair parts of the republic of indonesia and thus are part of the waters national which is under absolute sovereignty of the republic of indonesia. peaceful traffic through these inland waters for foreign vessels is guaranteed and simply does not conflict with the sovereignty and safety of the state of indonesia. determination of territorial sea boundaries with a width of 12 miles measured by lines connecting the outermost points on the islands of the republic of indonesia will be determined by law. the declaration includes, among other things, the principle of “archipelagic state” which views the sea area as a whole intact, rounded with land, air, sea floor and land beneath it, as well as the entire wealth contained in it. as an archipelagic country, geographically, the territory of indonesia consists of a variety of large and small islands, namely around 17,504 islands with a length of 81,700 km2 of coastline making waters within the sovereignty of the republic of indonesia and the indonesian exclusive economic zone and high seas containing resources potential fish and fish farming land. this is a blessing from god almighty mandated by the indonesian people who have the philosophy of life of pancasila and the 1945 constitution of the republic of indonesia. the potential of these marine resources must be utilized to the greatest extent for the welfare and prosperity of the people of indonesia. utilization of marine resources, including fisheries resources, has not provided a sustainable and equitable standard of living through fisheries management, supervision, and an optimal law enforcement system. one of the problems faced is illegal fishing activities in the form of illegal fishing. illegal fishing activities that are rampant nowadays are part of international problems that also have an impact on the losses suffered by indonesia. at present, of the 14 fishing ground zones in the world, there are only two potential zones and indonesia is one of them. the reason for the crisis is the fishing ground zone, due to over exploited or over fishing. in general, overfishing is interpreted as the number of fish caught exceeding the amount needed to maintain fish stocks in a certain area. overfishing does not merely have an impact on decreasing production and damaging the ecosystem. because on a macro scale, overfishing can cause a phenomenon called fleet migration. with the increasing number of fleets, countries that have experienced a decline in stock and production, as well as increased competition, react by looking for more productive fishing ground both legally and illegally. this is what then leads to illegal fishing (fauzi 2005: 28-32). one of the regions in indonesia which is the main destination for foreign fishing vessels (kia) and indonesian fishing vessels (kii) that carry out illegal fishing is the maluku waters. maluku is an archipelago province with an area of around 712,480 km2, of which most (92.4%) of the area is in the sea and only 7.6% of the land area. maluku has a thousand islands 276 yanti amelia lewerissa jils 3 (2) november 2018, 273-290 http://journal.unnes.ac.id/sju/index.php/jils (nicknamed the thousand islands province) with a land area of 54,187 km2, the coastline length ranges from 11,000 km2 with its sea area reaching 658,295 km2. the maluku sea saves natural wealth that cannot be valued by money (andibya et.al. 2008). maluku's marine resource potential reaches 1.64 million tons / year or 26.3% of the national potential of 6.26 million tons per year. the potential of fish resources is in 3 (three) fisheries management areas (wpp), namely in the banda sea, seram and surrounding sea, and arafura sea (andibya, et.al., 2008: 162-163). the arafura sea is the main destination for foreign fishing boats from china, thailand, korea and taiwan to commit illegal fishing. this illegal fishing fleet enters through the tores strait in southern papua new guinea. through this route, stolen fish are transported abroad. illegal fishing crimes carried out by foreign vessels in indonesian waters are transnational crimes. for indonesia, transnational crime is a big threat, considering that indonesia is not only a transit area for crimes that are categorized as transnational crime. however, indonesia has become the main destination for these crimes, and one of the transnational crimes committed is illegal fishing around the arafura sea in maluku province. illegal fishing activities are usually followed by other crimes such as the entry of illegal immigrants, trafficking in persons, slavery, narcotics trafficking, arms trafficking, carried out by foreign citizens, crossing national borders and of course having a negative impact on indonesia. one of the cases that occurred was related to capture fisheries activities carried out by several vessels owned by foreign companies affiliated with companies owned by indonesian entrepreneurs, namely pt pusaka benjina resources in benjina, aru islands regency, maluku province. as a result of the practice of illegal fishing carried out by pt pusaka benjina resources, and accompanied by the practice of trafficking in persons (bringing in foreign workers/labors from cambodia, laos, myanmar and thailand using fake documents) and slavery (these illegal laborers are not treated human) shows us that the practice of illegal fishing can be followed by other crimes such as the entry of illegal immigrants into the territory of indonesia. the relationship of illegal fishing with the emergence of illegal immigrants as a form of transnational crime the concept of illegal fishing contained in the framework of iuu (illegal, unreported and unregulated) fishing practices was first raised in 1997 in the ccamlr forum (commission for conservation of artic marine living resources). iuu fishing is grouped into: 1) illegal fishing, which is illegal fishing activities in the territorial waters of a country or does not have permission from that country; 277 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils 2) unreported fishing, namely fishing activities in the territorial waters or economic exclusive zone (zona ekonomi eksklusif, zee) of a country that are not reported both operational and vessel data and catches; 3) unregulated fishing, namely fishing activities in territorial waters or zee of a country that does not comply with the applicable rules in that country. the definition of illegal fishing issued by the illegal international, plan of action (ipoa) and unregulated (iuu) fishing initiated by fao as the implementation of the code of conduct for responsible fisheries (ccrf), is as follows (mukhtar 2015): 1) fishing activities carried out by a certain country or foreign vessels in waters which are not their jurisdiction without permission from countries that have jurisdiction or fishing activities are contrary to the laws and regulations of that country. 2) fishing activities carried out by flagged fishing vessels of one of the countries that are members of a regional fisheries management organization, the regional fisheries management organization (rfmo), but the operation of its vessels is contrary to fisheries management and conservation measures adopted by rfmo. rfmo countries must follow the rules set or other rules relating to international law 3) fishing activities that are contrary to the laws of a country or international provisions, including the rules set by rfmo member countries. whereas the term illegal fishing is not contained in the formulation of article fisheries law, both those qualifying as crime and violation. the term illegal fishing is only found in the explanation of law number 45 of 2009 concerning amendments to law number 31 year 2004 concerning fisheries. but there is no understanding or further explanation about illegal fishing. supervision of marine and fisheries resources of the ministry of maritime affairs and fisheries, gives a limit to the term illegal fishing as illegal fishing activities (psdkp kendari 2008), so fishing activities that are not regulated in the existing legislation. the losses incurred by illegal fishing are not only calculated based on the value of the stolen fish, but have a fairly extensive impact, among others (mukhtar 2015): 1. fuel subsidies are enjoyed by unauthorized vessels 2. reduction of non-tax state revenues (pnbp) 3. job opportunities for indonesian (local) fishermen are reduced, because illegal vessels are foreign vessels that use foreign crews 4. the catch is generally taken directly abroad (ship's country of origin) resulting in: a. the loss of part of the country's foreign exchange b. reduced value added opportunities from the processing industry 5. threats to the preservation of fish resources because the catch results are not detected, both in type, size and number 6. damaging the image of indonesia at the international level because of iilegal fishing carried out by foreign vessels with indonesian flags and 278 yanti amelia lewerissa jils 3 (2) november 2018, 273-290 http://journal.unnes.ac.id/sju/index.php/jils ships belonging to indonesian citizens. this can also have an impact on the threat of an embargo on indonesian fisheries marketed abroad 7. economic losses incurred include: a. fisheries levies paid at indonesian vessel tariffs b. fuel subsidies enjoyed by unauthorized foreign vessels c. stolen fish production (volume and value) illegal fishing activities which often occur in the waters of maluku are fishing theft of foreign fishing vessels from neighboring countries. the results of supervision carried out during the period 2005-2010 can be concluded that illegal fishing carried out by kia mostly occurred in the eez and also quite a lot happened in the islands waters. in general, the types of fishing gear used by kia in carrying out their actions are productive fishing tools such as purse seine and trawling (mukhtar 2015). the study of illegal fishing in arafura, conducted by the capture fisheries research center (pusat riset perikanan tangkap, prpt), dkp collaborated with fao in 2007-2008. the study shows that in the 2001-2005 period, around 1,258 million tons of fish were lost every year due to illegal fishing practices. this amount consists of 239.7 thousand tons of fish discarded or often called by catch (by-catch), 364.4 thousand tons of caught fish not reported, and 654.6 thousand tons of fish caught illegal (agency for marine and fisheries research). the prpt and fao study used the latest data in 2005. however, it did not mean that iuu's fisheries had been systematically reduced in the arafura sea. at the end of december 2007, a joint team from the maluku regional police and the national police headquarters captured the iuu fishing vessels in the waters of the aru islands. during the incident, two panama-flagged transport vessels, namely sutti reefer and brilliant reefer were arrested while transferring fish from fishing vessels named km antasena 309, km antasena 815, km antasena 816, km antasena 809, and km kartika 102. besides transfer of fish catches from ships that are in violation of the rules, fishing vessels are also suspected of violating the rules for using fishing gear (ramidi and desy 2008). presently, around 2,000 filipino fishing boats illegally catch tuna in the waters of sulawesi, maluku, north maluku and papua. these philippine fishing fleets often enter deep inland waters, often near the coast. these philippine ships are known as pump-boats, made from plywood and using diesel engines that are quite high. philippine boats are less than 10 gt, with an average crew of around 10 people, have very high cruising to catch tuna and are taken to the general santos port, the philippines is fresh (nikijuluw 2008). according to data from the director general of marine and fisheries resources supervision, until the end of august 2013, the ministry of maritime affairs and fisheries (kkp) has captured 58 fishing vessels that illegally arrested. of these, around 67% are foreign fish ships (kia), which consist of 11 malaysian vessels, 7 philippine vessels, 17 vietnamese vessels, 4 279 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils thai vessels. while as many as 19 ships or 33% are indonesian fishing vessels (kii) (ditjen psdkp 2014). maluku ranks first in the number of ship compliance violations involving 350 problematic vessels. the majority of violations occur around the aru islands. 95 percent of the ships employ captain and foreign crewmen without documents or complete documents, have many flags, vms that is not activated so that the ship's position is unknown (fajar 2015). the task force team for the prevention and eradication of illegal fishing at the ministry of maritime affairs and fisheries also found 200 violations in north sulawesi, 150 in bali, 140 in papua, and 60 violations in the riau islands with additional violations such as the arrest and export of protected fish, import of illegal goods, fictional legal entities and mark-down of vessel weight (fajar 2015). for the case of pt pusaka benjina resources (pt pbr), according to the head of the illegal fishing eradication task force, achmad santoso said that pt pbr was allegedly affiliated with a thai company. pt pbr in indonesia has 3 subsidiaries, namely pt pusaka benjina nusantara, pt pusaka benjina armada, and pt pusaka benjina bahari. pt pbr has 96 ships and the vessels are also owned by thai companies. of the total 96 vessels, there are 70 vessels owned by pt silver sea fishery, 16 vessels owned by pt thai hoang huad and 10 vessels owned by pt ocean research fishery, all three of which are located in thailand (fauzi 2016; darulzain, supriyadhie, and rahayu 2017). so far, pt pbr has received large funds/capital injections from thailand, so that the position of pt pbr in indonesia is just like an agent. for the composition of its shares, it is suspected that the thai company has a position of more than 50% while the rest is held by domestic investors (fauzi 2016). according to an investigation by an associated press (ap) reporter, thousands of poor migrant fishermen from myanmar, laos, cambodia were recruited in thailand and taken to indonesia using fake documents. they are often treated inhumane. some of them have been enslaved for years. the associated press (ap) also found several people locked in cages. in a cemetery managed by one company there are dozens of graves with fake names. after news from the ap spread, the indonesian security forces in april 2015 took action to rescue. more than 2000 people were released and sent home. according to the results of the investigation, the seafood products produced by the fishermen were sold to large networks in the united states such as wal-mart, sysco, kroger, fancy pesta, meow mix and iams (antara 2016). based on kkp data, there were 322 foreign workers (crew members) who had been transferred from benjina to tual. consisting of 256 people from myanmar, 58 people from cambodia, 8 people from laos. while there are 800 people from thailand (detiknews 2015; interpol 2013). the presence of foreign workers from neighboring countries such as myanmar, laos and cambodia uses fake documents to enter indonesian territory and works as pt 280 yanti amelia lewerissa jils 3 (2) november 2018, 273-290 http://journal.unnes.ac.id/sju/index.php/jils pbr crew members without going through clear and definite procedures in the case of inappropriate recruitment of foreign crews. with management of permits using foreign workers (imta) conducted by the ministry of manpower and transmigration at the bkpm ptsp, which has been regulated in the regulation of the head of bkpm no. 5 of 2013. the president of the republic of indonesia, joko widodo, said that currently more and more countries in the world are aware that illegal unreported unregulated (iuu) fishing is a transnational crime whose impact in the world is quite extraordinary. our oceans that cover 71% of the earth's surface are threatened with sustainability by the practice of iuu fishing. even though according to jokowi, the sea is a source of income for 520 million world population and food source for 2.6 billion people. the practice of iuu fishing has reduced fish stocks by 90.1%. he said iuu fishing was also linked to other crimes such as smuggling of goods and people, illegal laborers, smuggling of narcotics, and violations of regulations on natural protection and hygiene. this means that iuu fishing has developed into a transnational crime that is very serious and organized (kurniawan 2016). according to jokowi, it is very important for indonesia to fight transnational organized crime with global collaboration. he stressed that indonesia could not inhabit the issue of iuu fishing. in 2014, fao said indonesia was ranked as the second largest producer in the world for marine fish with a catch of 6 million tons, equivalent to 6.8% of total world production of marine fish. according to him, iuu fishing has resulted in indonesia's economic loss of 20 billion us dollars per year. this also threatens 65% of coral reefs in indonesia. therefore, in the last 2 years indonesia has continued to maintain and try to secure the practice of iuu fishing such as the capture and sinking of 236 fishing vessels. from these results, it is seen that the level of fish exploitation in indonesia has decreased between 30-35%, thus enabling us to increase national fish stocks from 7.3 million tons in 2013 to 9.9 million tons in 2015 (kurniawan 2016). the same was stated by the indonesian minister of maritime affairs and fisheries, susi pudjiastuti at the opening of the 2nd international fisheries crime symposium in yogyakarta. he urged that the united nations (un) recognize illegal fishing as a transnational crime. according to him, indonesia currently supports so that fisheries crimes such as iuu fishing are recognized as organized transnational crimes based on the united nations convention against transnational organized crime (united nations convention on transnational organized crime-untoc). susi said, illegal fishing was a serious crime because it followed other crimes. based on the analysis and evaluation he conducted on 1,132 ex-foreign vessels, iuu fishing has cross-country elements and is carried out in an organized manner (pramono 2016). thus it can be judged that there is a connection between illegal fishing activities carried out by foreign vessels around indonesian waters, especially in maluku waters, it is also followed by other crimes such as the entry of 281 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils illegal immigrants from neighboring countries. they are recruited and transported using foreign vessels which are also used to carry out capture fisheries in indonesian waters. after being included in indonesian territory illegally, these migrants were hired inhumanely to foreign-owned fishing companies as well. illegal immigrants in indonesia: a general condition as an archipelago, indonesia has many entrances both in the sea, land and in the air. moreover, indonesia's geographical location which is in a cross position in the international trade route has caused indonesia's territory to be prone to transnational crime. one of the transnational crimes that is a serious problem for the indonesian nation is the entry of illegal immigrants. based on data from the indonesian national police until october 2013 there were 10,593 cases of illegal immigrants entering indonesian territory through the waters (sea) (yulianingsih 2013). because of the geographical location of indonesia as the largest archipelagic country and weak supervision, the sea lane is an option that is considered safe for illegal immigrants. data from the ministry of foreign affairs (kemenlu) states that there were 14,425 illegal immigrants from 47 countries who entered indonesia. of these 8,039 people are refugees and 6,386 asylum seekers. there are five countries that dominate the country of origin of immigrants, such as from afghanistan, somalia, iraq, myanmar and nigeria. not much different from the data from the head of immigration superintendence directorate general of immigration m adnan, who stated that there were a total of 14,337 illegal immigrants in indonesia as of june 30, 2017, and based on unhcr data, the number consisted of 5,701 asylum seekers and 8,636 refugees, with 4,059 women, and 10,278 men (kumparan 2017). one organization that cares about the fate of migrants is (international organization for migrations) iom. this organization has a commitment to advance orderly and humane migration for the benefit of all. population migration is a change of activity for both permanent and semi-permanent dwellings that can include migrants, immigrants, temporary workers, guest workers, students and illegal immigrants, who cross a national boundary. in this interpretation it does not include groups of tourists and diplomatic communities (haris and andika 2002), so migration is a process of moving people from one country to another. illegal immigrants are migrations that occur outside the procedure and state rules that exist or also move people through national borders that violate applicable migration rules (iom 2012). there are four situations the person is called illegal immigrants (johan 2013; andayani 2016), namely: 1) immigrants who enter clandestine (hide) with fake documents 2) fixed more than the allowable time 282 yanti amelia lewerissa jils 3 (2) november 2018, 273-290 http://journal.unnes.ac.id/sju/index.php/jils 3) victims of people smuggling networks 4) intentionally harassing the international asylum system so it can be concluded that illegal immigrants are people who move from one country to another and cross national borders by not having official documents implied by the country of origin or destination, or citizens of other countries who live in a country beyond the time of the residence permit. the term illegal immigrants develops as complex population traffic includes refugees, asylum seekers, immigrants on economic grounds, immigrants for environmental reasons, smuggling immigrants, victims of human trafficking (stranded migrants), stranded migrants (johan 2013). all migrants regardless of the term they carry have the right to be given protection based on human rights. this is because in addition to the civilized nation, indonesia ratified the human rights convention through law no. 39 of 1999 concerning human rights. if seen from the definition or definition of the term illegal immigrants who are people who move from one country to another and cross national borders by not having official documents implied by the country of origin or destination country, or citizens of other countries who live in a country exceeding time of residence permit, and if seen from the situation someone is said to be an illegal immigrant namely; immigrants who entered clandestine (hiding) with fake documents, settled more than the allowable time and victims of people smuggling networks, so in the case of pt pusaka benjina resources (pbr) which included the ship fruits (abk) and foreign workers showed that besides capture fisheries activities that violate pt pbr's rules also commit other crimes, including entering people from neighboring countries and recruited in thailand and then transported to indonesia using fake documents. they entered indonesian territory through fishing vessels used to carry out fishing activities in the indonesian territory, especially maluku waters. according to kesbangpol pekalongan (2016), the mode commonly used by illegal immigrants to enter indonesian territory as follow: 1) enter indonesian territory from malaysia, vietnam, thailand 2) there are facilitators / smugglers (from malaysia paying usd 400) 3) use mouse / traditional paths along the northern coast of sumatra 4) to jakarta via airplane / ship / bus (destination): submit asylum seeker status. refugees at unhcr 5) stay in the place of acquaintance / relatives or become iom's dependents 6) if there are opportunities, funds and facilitators (smugglers) go to australia illegally prone area as the entrance or transit point for illegal immigrants are: semarang, solo, purworejo, kebumen, and cilacap. in fact, the islands, especially the islands, which are far from the reach of law enforcement officials, have become the target of illegal immigrants as entrances. they use fishing vessels which are generally foreign owned to carry out the process of transporting these illegal immigrants into indonesian 283 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils territory. the entry of illegal immigrants into indonesia raises some problems including socio-cultural, economic and also security problems. the new culture they carry is not necessarily able to blend with the culture or tradition of the local community. this can actually lead to social conflict in society. the economic impact caused by illegal entry will reduce the state income through import duty (visa). in addition, the unemployment rate will increase because foreign workers with low wages will be the choice of employers compared to employing indonesian citizens. because life is lacking as well as socio-cultural clashes with the local community, it will cause unrest in the community because of the sense of security and comfort that is disturbed due to the actions of these illegal immigrants. even so, indonesia cannot arbitrarily drive away these illegal immigrants. in addition to being bound by the convention on human rights, indonesia already has an agreement with the international organization for migration (iom), which is a special un body that deals with immigrant issues. these illegal immigrants are funded by iom, they will be recorded, sorted and will be arranged by the immigrants. if there is a country that is willing to accept, iom will send. on the contrary, these illegal immigrants can be deported. indonesia does not yet have a law specifically regulating the problem of illegal immigrants. they make indonesia not only as a transit country but as a final destination country. many illegal immigrants enter indonesia on the grounds of refugees and asylum seekers. while waiting for their status decided by unhcr in jakarta 1 and these immigrants feel safe in indonesia. the illegal immigrants who entered indonesia also took advantage of the status of victims of human infiltration. they are considered as victims of human smuggling, even though indonesia does not yet have laws specifically regulating the problem of human smuggling. in addition to its friendly population, its vast territory, the weakness of legislation and the government's lack of determination in facing the entry of illegal immigrants, it is interesting for them to make indonesia the final destination. political motives which usually become the main reason for illegal immigrants to cross indonesian territory, have begun to shift to economic problems as a strong reason for illegal immigrants. so the causes of illegal immigrants entering indonesia due to ethnic conflict, domestic and political security conditions, the existence of human rights violations, the economic crisis (low welfare level) and the persuasion of people smuggling syndicates, have shifted to a better livelihood (economic ) by looking for work as illegal foreign workers. the handling of illegal immigrants in indonesia is carried out using the immigration act, law no. 6 of 2011 which has adopted the principles contained in the united nations convention against transnational organized crime and its two additional protocols (protocol to prevent, 1 the presence of unhcr in indonesia which is procedurally considered by asylum seekers to be faster in issuing refugee status. 284 yanti amelia lewerissa jils 3 (2) november 2018, 273-290 http://journal.unnes.ac.id/sju/index.php/jils suppress and punish trafficking in persons, especially women and children, supplementing the united nations convention against transnational organized crime and protocol against the smuggling of migrants by land, sea and air, supplementing the united nations convention against transnational organized crime). through the immigration law, the state has the right to regulate the presence of foreigners in the territory of the unitary republic of indonesia who enter legally or illegally. but in its implementation, there are still some weaknesses, among others, said illegal immigrants show that asylum seekers and refugees are still considered part of immigrants in general. not in another category, namely refugees. because of indonesia has not ratified the 1951 refugee convention, in addition, the protocol on smuggling of migrants places illegal immigrants as victims of smuggling, namely people who are objects to be taken economically by paying a sum of money to smugglers, thus there is no deterrent effect for immigrants because according to the principle of the protocol they are victims not as perpetrators or part of the smuggling business. that the problem when these immigrants are released from the criminal sanctions. the role of international criminal law on illegal fishing and illegal imigrants case in the era of globalization, conflicts that occur in international relations are generally triggered by the scarcity of natural resources, water availability, hunger, poverty, distrust, hostility and egocentrism of each entity in interacting with each other. regarding the scarcity of natural resources, an increase in the world's population and the need to develop the economy have led to extraordinary extraction of fish resources. now fish has become an important commodity for the world globally. the rapid development in the field of capture technology has not only brought a positive impact in the form of increasing fish production globally, but also a decline in some fish stocks in various waters. indonesia as one of the largest archipelagic countries in the world saves reserves of this marine resource. so that indonesian territorial waters are certainly the main target of capture fisheries perpetrators, which are mostly carried out by foreign citizens, to exploit our marine resources both legally and illegally so that illegal fishing can cause loss which not small for indonesia. as the largest archipelagic country in the world, the threat of transnational crime is very open to indonesia. the handling of transnational crime must be taken seriously. its structure and characteristics are usually organized so that it is difficult to be dismantled by the approach of mere legal investigation, of course, it cannot be done alone by law enforcement official (srigunting 2012). transnational crime is a crime that does not recognize the territorial borders of a country (borderless). the modus operandi, form or type and locus 285 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils tempus delicti involve several countries and various state laws. the term transnational first appeared in the early 20th century to illustrate a new way of understanding inter-cultural relations. transnational is a social movement that arises because of the increasing inter-connectivity between humans on the entire surface of the earth and the waning of national borders. law enforcement for transnational crime basically refers to the principle of “au dedere au punire” meaning that transnational criminals can be convicted by a country where locus delicti occurs within the country's territorial boundary or is handed over through extradition procedures to requesting countries that have jurisdiction to try the perpetrators (olii 2005). the types of crimes including transnational crimes include trafficking in illegal drugs, human trafficking, people smuggling, smuggling arms, money laundering, illicit trade in light weapons. some characteristics of transnational crime are (sefriani 2016): 1. crimes that stipulated in international conventions a. un convention against transnational organized crime b. protocol against smuggling of migrants land, air and sea c. protocol to prevent, suppress and punish trafficking in persons, especially woman & children d. protocol against the illicit manufacturing & trafficking in firearms, their parts and components and ammunition 2. actors involve several nationalities 3. as a result of criminal acts harm the interests of several countries 4. locus delicti is carried out outside the territory of the affected country 5. economic or financial motives dominate the background of transnational crime 6. need international/regional cooperation to mitigate it. for example extradition, mla, law enforcement cooperation, collection and exchange of information, joint investigations, transfer of criminal proceedings and others 7. courts that have jurisdiction are national courts. muladi (2016) also highlighted that in the palermo convention on transnational organized crimes in 2000, it was said to be transnational crime if it fulfilled the following matters: 1. an organized criminal group 2. committing crimes in more than one country 3. committing a crime in one country but its substance such as preparation, planning, direction and control occurs in another country 4. committing a crime in a country but involving an organized crime group that commits crimes in more than one country 5. committing crimes in more than one country but having the effect of substance in another country the legal principle that applies to transnational crime is the principle of au dedere au punire, thus a court that has jurisdiction is a national court with 286 yanti amelia lewerissa jils 3 (2) november 2018, 273-290 http://journal.unnes.ac.id/sju/index.php/jils territorial, national or protection principles. related to transnational crime, the function of international criminal law is to harmonize between national state criminal law with one another. given that the prevention of transnational crime requires international cooperation, the existence of international criminal law that provides legal instruments to work together and provide legal assistance can be used as a solution (sefriani 2016). the role of international criminal law in overcoming iuu fishing as transnational crime can also be seen by encouraging solidarity and international cooperation which is believed to be an alternative solution in the prevention and eradication of transnational crime and international crime in addition to repressive law enforcement solutions that prioritize solely a legal formal approach. moreover, the perpetrators of illegal fishing in maluku waters are generally citizens of neighboring countries such as thailand, vietnam, the philippines of taiwan, and china and the area that is always passed by perpetrators of illegal fishing to carry away stolen fish abroad which usually passes through neighboring countries such as png and australia therefore, cooperation between neighboring countries to prevent and eradicate illegal fishing is highly expected. good faith is needed from these neighboring countries so that they do not seem to let or protect their citizens who are perpetrators of illegal fishing in our waters. the existence of international criminal law has also encouraged various co-operations in the field of criminal law such as cooperation in repatriating victims of trafficking and smuggling, as was done by pt pusaka benjina resources. there is good faith from neighboring countries whose citizens are victims of trafficking to work with the indonesian government to repatriate 400 citizens of myanmar, laos and cambodia and 800 thai nationals who are illegal laborers in companies engaged in fisheries catch this. thailand as the country of origin of the perpetrators of illegal fishing and trafficking in persons was involved and cooperated with the indonesian side when several staff representatives of the thai government came to benjina to see firsthand the conditions of the victims, and the existence of pt pbr, a thai company affiliated with local companies in indonesia. thailand also gave full authority to the indonesian government to investigate and resolve cases of illegal fishing and trafficking so that five of its citizens were sentenced to 3 years in prison by the tual district court, maluku province. there are so many crimes related to crime in the field of capture fisheries. the crime of the fisheries sector is a cross-sector crime. so that in its handling on a cross-sectors approach is needed. the existence of coordination and technical training between related agencies is needed to minimize the crime of illegal fishing and the entry of illegal immigrants. 287 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils conclusion it is highlighted that there is a relationship or relationship between illegal fishing and the entry of illegal immigrants into the territory of indonesia. as the largest archipelagic country in the world, indonesia has many entrances, one of which is through the vast waters or seas of indonesia. this is also what makes indonesia vulnerable to being the main target of transnational crime. one serious crime that has not been recognized by the united nations as transnational crime even though it actually has cross-country elements, illegal fishing is also a serious crime that must be prevented and overcome because there are other crimes that usually follow the illegal fishing activities. one of them is the entry of illegal immigrants transported in foreign fishing vessels. illegal immigrants entering indonesia generally use the reasons for refugees and asylum seekers. the five countries that dominate are afghanistan, somalia, iraq, myanmar and nigeria. ethnic conflict, political situation, low welfare in the country of origin and wanting to find a better livelihood are the motives of illegal immigrants to enter indonesia. the mode of illegal immigrants goes more into indonesian territory by sea. because of the geographical location of indonesia as the largest archipelagic country, it caused many entrances and weak supervision. the legal principle that applies to transnational crime is the principle of au dedere au punire, then the function of international criminal law is to harmonize between one country's national criminal law with one another. reference andibya, budut w. et.al.. maluku the wonderful islands. jakarta: gibon group publications, 2008. agency for marine and fisheries research. study on the implication of illegal, unreported and unregulated (iuu) fishing in arafura sea for indonesian fishery statistics. project # pr34944. preliminary report. collaboration between fao and research center for capture fisheries, agency for marine and fisheries research. antara. “8 orang divonis 3 tahun penjara dalam kasus benjina, tual”, online news, 11 march 2016, retrieved from https://www.dw.com/id/8-orang-divonis-3-tahun-penjara-dalamkasus-benjina-tual/a-19111454 batubara, nanda f. “data dirjen imigrasi total imigran gelap sepanjang 2017 capai 14.337 imigran”, online news, 21 july 2017, retrieved from http://medan.tribunnews.com/2017/07/20/segini-total-imigran-gelapsepanjang-2017 https://www.dw.com/id/8-orang-divonis-3-tahun-penjara-dalam-kasus-benjina-tual/a-19111454 https://www.dw.com/id/8-orang-divonis-3-tahun-penjara-dalam-kasus-benjina-tual/a-19111454 http://medan.tribunnews.com/2017/07/20/segini-total-imigran-gelap-sepanjang-2017 http://medan.tribunnews.com/2017/07/20/segini-total-imigran-gelap-sepanjang-2017 288 yanti amelia lewerissa jils 3 (2) november 2018, 273-290 http://journal.unnes.ac.id/sju/index.php/jils ditjen psdkp, direktorat jenderal pengawasan sumber daya kelautan dan perikanan, “kkp tangkap 58 kapal illegal fishing”, online news, retrieved from http://djpsdkp.kkp.go.id/index.php/arsip/c/31/kkptangkap-58-kapal-illegal-fishing/?category_id=8 darulzain, m. rizqy, h.m. kabul supriyadhie, and rahayu. “penerapan foundational principles of the state duty to protect human rights dalam united nations guiding principles on business and human rights (ungp) (studi terhadap perlindungan ham pekerja sektor perikanan indonesia). diponegoro law review, 2017, 6(2): 1-34. detiknews. “satgas illegal fishing cek 9 kapal eks asing di tual”, online news, 31 march 2015, https://news.detik.com/berita/2875098/satgasillegal-fishing-cek-9-kapal-eks-asing-di-tual/komentar. fauzi, akhmad. kebijakan perikanan dan kelautan (isu,sintesis dan gagasan). jakarta: gramedia pustaka utama, jakarta, 2005. fajar, jay. “satgas: pelanggaran peraturan kapal tertinggi ada di maluku”, online news, 8 june 2015, retrieved from http://www.mongabay.co.id/2015/06/08/satgas-pelanggaranperaturan-kapal-tertinggi-ada-di-maluku/ fauzi, syafril “permen kp nomor 35 tahun 2015 tentang sertifikasi hak asasi manusia (ham) pada usaha perikanan”, paper, presenter at seminar faculty of law universitas airlangga and ministry of maritime affairs and fisheries, surabaya, 26 april 2016. haris, abdul and nyoman andika. gelombang migrasi dan konflik kepentingan regional: dari perbudakan ke perdagangan manusia. yogjakarta: lefsei, 2002. international organization for migrations (iom). petunjuk penanganan tindak pidana penyelundupan manusia (pencegatan, penuntutan dan koordinasi di indonesia). jakarta: iom, 2012. interpol. “mengungkap illegal fishing di maluku tenggara”. online news, 2013, retrieved from http://www.interpol.go.id/id/kejahatantransnasional/kejahatanekonomi/95-mengungkap-illegal-fishing-dimaluku-tenggara johan, eva. “kebijakan indonesian terhadap imigran ilegal dan hubungannya dengan kedaulatan negara”, yuridika, 2013, 28(1): 1-12. kesbangpol pekalongan, “penanggulangan imigran ilegal di indonesia”, online article, 3 march 2016, retrieved from http://www.kesbangpolpekalongankota.org/index.php?option=com_content&view=article&id =1069:penanggulangan-imigran-ilegal-diindonesia&catid=48:artikel&itemid=56 kusumastanto, tridoyo. ocean policy dalam membangun negara bahari di era otonomi daerah. jakarta: gramedia pustaka utama, jakarta, 2003. kumparan. “14 ribu imigran gelap tersebar di indonesia”, online news. 9 march 2017, retrieved from http://kumparan.com/@kumparannews/14-ribu-imigran-gelaptersebar-di-indonesia http://djpsdkp.kkp.go.id/index.php/arsip/c/31/kkp-tangkap-58-kapal-illegal-fishing/?category_id=8 http://djpsdkp.kkp.go.id/index.php/arsip/c/31/kkp-tangkap-58-kapal-illegal-fishing/?category_id=8 https://news.detik.com/berita/2875098/satgas-illegal-fishing-cek-9-kapal-eks-asing-di-tual/komentar https://news.detik.com/berita/2875098/satgas-illegal-fishing-cek-9-kapal-eks-asing-di-tual/komentar http://www.interpol.go.id/id/kejahatan-transnasional/kejahatanekonomi/95-mengungkap-illegal-fishing-di-maluku-tenggara http://www.interpol.go.id/id/kejahatan-transnasional/kejahatanekonomi/95-mengungkap-illegal-fishing-di-maluku-tenggara http://www.interpol.go.id/id/kejahatan-transnasional/kejahatanekonomi/95-mengungkap-illegal-fishing-di-maluku-tenggara http://www.kesbangpol-pekalongankota.org/index.php?option=com_content&view=article&id=1069:penanggulangan-imigran-ilegal-di-indonesia&catid=48:artikel&itemid=56 http://www.kesbangpol-pekalongankota.org/index.php?option=com_content&view=article&id=1069:penanggulangan-imigran-ilegal-di-indonesia&catid=48:artikel&itemid=56 http://www.kesbangpol-pekalongankota.org/index.php?option=com_content&view=article&id=1069:penanggulangan-imigran-ilegal-di-indonesia&catid=48:artikel&itemid=56 http://www.kesbangpol-pekalongankota.org/index.php?option=com_content&view=article&id=1069:penanggulangan-imigran-ilegal-di-indonesia&catid=48:artikel&itemid=56 mailto:.com/@kumparannews/14-ribu-imigran-gelap-tersebar-di-indonesia mailto:.com/@kumparannews/14-ribu-imigran-gelap-tersebar-di-indonesia 289 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils kurniawan, bagus. “illegal fishing kejahatan transnasional, butuh kolaborasi global”, online news, 10 october 2016, retrieved from https://news.detik.com/berita/d-3316774/jokowi-illegal-fishingkejahatan-transnasional-butuh-kolaborasi-global mukhtar. “illegal fishing di indonesia”, online article, march 9, 2015, retrieved from http://mukhtar-api.blogspot.com/2011/05/ mukhtar in nunung mahmudah. illegal fishing pertanggungjawaban pidana korporasi di wilayah perairan indonesia. jakarta: sinar grafika, 2015. muladi. “hukum kosmopolitan dalam hubungan internasional” in sefriani. peran hukum internasional dalam hubungan internasional kontempoter. jakarta: rajawali pers, jakarta, 2016. nikijuluw, victor ph. blue water crime. jakarta: pustaka cidesindo, jakarta, 2008.psdkp kendari, pengawasan sumber daya kelautan dan perikanan kementerian kelautan dan perikanan, mengenal iuu fishing yang merugikan negara 3 triliun rupiah/tahun, 12 march 2008, retrieved from http://p2sdkpkendari.com olii, mohammad irvan. “sempitnya dunia, luasnya kejahatan?” sebuah telaah ringkas tentang transnasional crime”, jurnal kriminologi indonesia, september 2015, 4 (1): 14-27. pramono, fx. richo. “menteri susi minta pbb jadikan curi ikan kejahatan transnasional”, online news, 10 october 2016, retrieved from https://www.liputan6.com/news/read/2622611/menteri-susi-mintapbb-jadikan-curi-ikan-kejahatan-transnasional ramidi and desy pakpahan. “justru di laut kita dijarah”, tempo, 14-20 january 2008: 34-35. sefriani. peran hukum internasional dalam hubungan internasional kontempoter. jakarta: rajawali pers, 2016. srigunting. “kejahatan transnasional”, article online, 22 december 2012, retrieved from https://jurnalsrigunting.wordpress.com/2012/12/22/kejahatantransnasional-2/ yulianingsih. “kasus imigran illegal masuk perairan indonesia”, online news, 6 november 2013, retrieved from http://republika.co.id/berita/nasional/jawa-tengah-diynasional/13/11/06/mvuci610593-kasus-imigran-illegal-masukperairan-indonesia https://news.detik.com/berita/d-3316774/jokowi-illegal-fishing-kejahatan-transnasional-butuh-kolaborasi-global https://news.detik.com/berita/d-3316774/jokowi-illegal-fishing-kejahatan-transnasional-butuh-kolaborasi-global http://mukhtar-api.blogspot.com/2011/05/ http://p2sdkpkendari.com/ https://www.liputan6.com/news/read/2622611/menteri-susi-minta-pbb-jadikan-curi-ikan-kejahatan-transnasional https://www.liputan6.com/news/read/2622611/menteri-susi-minta-pbb-jadikan-curi-ikan-kejahatan-transnasional https://jurnalsrigunting.wordpress.com/2012/12/22/kejahatan-transnasional-2/ https://jurnalsrigunting.wordpress.com/2012/12/22/kejahatan-transnasional-2/ http://republika.co.id/berita/nasional/jawa-tengah-diy-nasional/13/11/06/mvuci610593-kasus-imigran-illegal-masuk-perairan-indonesia http://republika.co.id/berita/nasional/jawa-tengah-diy-nasional/13/11/06/mvuci610593-kasus-imigran-illegal-masuk-perairan-indonesia http://republika.co.id/berita/nasional/jawa-tengah-diy-nasional/13/11/06/mvuci610593-kasus-imigran-illegal-masuk-perairan-indonesia 290 yanti amelia lewerissa jils 3 (2) november 2018, 273-290 http://journal.unnes.ac.id/sju/index.php/jils law adagium ― “quiquid est in territorio, etiam est de territorio” ― what is within the borders of the state is subject to that country’s law 147 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol i issue 01, 2016 volume 3 issue 02 november 2018 jils 3 (2) 2018, pp. 147148 issn (print) 2548-1584 issn (online) 2548-1592 editorial commentary introducing jils 3(2), november 2018 edition: crimes and society and its contemporary issues dani muhtada, ridwan arifin faculty of law, universitas negeri semarang (unnes) crime in the midst of society has undergone various changes, both in terms of form, type, motive, even to the cause of occurrence. the legal aspects in responding to crime are not only related to aspects of law enforcement or repression, but also prevention. law is considered as a way to create a peaceful and prosperous society, one of which is through social engineering. in many countries, including indonesia, industrialization, urbanization and rapid social change are among the causes of the emergence and development of various crimes. to highlight the significance development of crime in the society, this journal volume is dedicated to discuss several issues related to the criminal law, crimes and society. najih, for example, discuss the ideas of penal reform in indonesia. using a legal perspective and local wisdom approach, he analyzes how to create a law—criminal law—based on indonesian characters. he promote the concept of penal reform by local wisdom pancasila approach to provide justice and legal certainty which is in accordance with the character of indonesian people. another author, syahrin, discusses how legal reform and policy is needed to resolve current condition in immigration crimes. he analyzes that the authority of ppns investigators on immigration crime cases need to be strengthened. an article by ash-shidiqqi and wibisono focuses specifically on the corruption and the village accountability. they argue that 148 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang dani muhtada, ridwan arifin jils 3 (2) november 2018, 147-148 http://journal.unnes.ac.id/sju/index.php/jils the village law in indonesia and village funds raises various misuse of use, one of which is corruption of village funds. however, the problem is in the aspects of accountability management, which according to them, need to be encouraged not only by the government but also the community. another article by wibowo analyzes the corporate responsibility the case of money laundering. he discusses about whether the company can be subjected as criminal actors and in what way the company can be subjected. he emphasized that in the globalisation era, money laundering and corruption is one of the worst enemies of business because it can result in far-reaching consequences. the clear and firm law enforcement, according to him is one of the important factors in solving this problem. another article by pasaribu focuses on community policing or pemolisian masyarakat, polmas on combating narcotics and drugs abuse crimes. she highlights the important role of society in reducing crime. article by arifin discusses about the method handling the juvenile delinquency. he argues that the proper and the right method will effectively reduce the crimes committed by children. he emphasized the important role of lpka kutoarjo as one of special institution in dealing with child crime. article written by lewerissa concerning to the relationship between illegal fishing and illegal immigrant in the contexts of crimes. she revealed that many illegal fishing cases in indonesia were also accompanied by several immigration and smuggling problems. in almost the same context, article written by widyawati focuses on migrant workers protection. i would like to thank all the authors who have contributed their articles for this jils edition. i would also like to extend my sincere gratitude to the board of editors and administrative staff of the journal of indonesian legal studies, who have made a great effort to make this edition possible. for the readers of this academic journal, i wish this edition provides you with some new insights on the practices of the legal system in indonesia. enjoy! dani muhtada, m.p.a., ph.d. editor in chief journal of indonesian legal studies ridwan arifin, s.h., ll.m. managing editor journal of indonesian legal studies attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf2390bf2b20fd • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access 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cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf2390ae8d2085 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare jils (journal of indonesian legal studies) volume 5(1) 2020 171 available online at http://journal.unnes.ac.id/sju/index.php/jils review article criminal policy of adultery in indonesia anis widyawati 1 faculty of law, universitas negeri semarang, indonesia  anis@mail.unnes.ac.id submitted: january 15, 2020 revised: april 6, 2020 accepted: april 30, 2020 abstract judge courage needed in deciding adultery cases in article 284 of the criminal code for perpetrators who have not been bound by marriage, the judge can apply based on the 1945 constitution and the law on judicial power, which states the source of law is not only the law (expansion of the principle of material legality) but can also source from code that lives in the community (customary law). this research is intended to analyze and describe the penal policy (criminal law policy and politics of criminal law) concerning adultery in indonesia. this research uses normative legal research, where the author analyze and compare all laws and regulations concerning to adultery in indonesia and some theories of adultery in global context. this paper emphasized that adultery not only against religious values but also customary values (customary law). the formulation of adultery concept in indonesian penal code affected by religious teachings and national ideology of pancasila. keywords: adultery; criminal policy; penal policy; criminal code nationally accredited journal (sinta 2) jils (journal of indonesian legal studies) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue 1, may 2020 issn (print) 2548-1584 issn (online) 2548-1592 http://journal.unnes.ac.id/sju/index.php/jils 172 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ……………………………………………………………. 171 table of contents ……………………………….....………….. 172 introduction …………………………………….………………. 172 adultery in the study ius constitutum ……………... 174 adultery in the study ius constituendum ………… 176 conclusion ………………………………………………………… 182 references ………………………………………………………… 183 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. how to cite: widyawati, a. (2020). criminal policy of adultery in indonesia. jils (journal of indonesian legal studies) 5(1), 171-186 https://doi.org/10.15294/jils.v5i1.36786. introduction after indonesia declared its independence in 1945, to fill the void of criminal law imposed in indonesia, based on article 2 of the transitional provisions of the 1945 constitution and also affirmed in government regulation no. 2 of 1945 concerning all state agencies and regulations existing until its establishment the republic of indonesia on august 17, 1945, as long as the new constitution had not had hold yet, it was still valid as long as it did not conflict with the 1945 constitution. therefore, wvsni was still in force. the application of wvsni into indonesian criminal law uses law no. 1 of 1946 concerning indonesian criminal law regulations. article vi of law no. 1 of 1946 states that the name wetboek van strafrecht voor nederlandsch indie was changed to wetboek van strafrecht and was called the "criminal law book" (kuhp). besides, this law also does not re-impose criminal regulations http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 173 available online at http://journal.unnes.ac.id/sju/index.php/jils issued since march 8, 1942, both published by the japanese government and by the commander in chief of the dutch east indies army. because the struggle of the indonesian nation had not has completed in 1946 and the dualism of the criminal code emerged after that year, in 1958, law no. 73 of 1958 was issued which enacted law no. 1 of 1946 for the entire territory of the republic of indonesia. the development of the criminal code in the practice of criminal law lags. there is an ideological paradigm that is still oriented towards "legal certainty" and leaves the meaning of "justice.” the fundamental values of human rights, the substance of the law and the principle of equality before the code in the concept of the 1945 constitution after the amendment have not had entirely transforms into the realm of law enforcement. so that the legal ideology contained in the criminal code and criminal procedure code contains several obstacles to achieving justice. more fundamentally, the penal code (kuhp) has a culture that is different from the culture of the indonesian people. after a long time, the penal code has been in force in indonesia. it turns out that it still leaves a variety of social problems that occur in indonesia because there are a conflict1 between religious values, social, cultural, and legal interests. the issue of adultery offense2 is an actual example of the clash between the understanding and understanding of adultery in the criminal code with the legal3, religious4, social5, and cultural interests6 of the community7. conflicts that often occur in the community often lead to a new crime — the weak practice of law enforcement8. in 2002, a survey of the love and humanitarian studies institute and the business and humanities training center (lsck pusbih) published on jogjakarta students. the study was conducted for three years, from july 1999 to july 2002, involving around 1,660 respondents from 16 1 anis widyawati, penal mediation as an alternative dispute resolution of social, 9 44–49 (2016). 2 id. 3 christopher bennett, the authority of moral oversight: on the legitimacy of criminal law, 25 leg. theory 153–177 (2019). 4 mihai iulian necula, aspects concerning the penal protection of the freedom of religious beliefs, 149 procedia soc. behav. sci. 639–646 (2014). 5 otwin marenin, the tragic core of criminal justice: coercive social control and the loss of innocence, 58 int. j. law, crime justice 91–99 (2019). 6 id. 7 jonathan simon, introduction: crime, community, and criminal justice, 90 calif. law rev. 1415 (2002). 8 c.m. perales, criminal enforcement of environmental laws, 1 in encyclopedia of toxicology 1066– 1069 (third edit ed. 2014). http://journal.unnes.ac.id/sju/index.php/jils 174 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils tertiary institutions, both public and private, in jogjakarta. of the 1,660 respondents, 97.05 % claimed to have lost their virginity while in college, having had sex in pairs or adultery. judging from the place they had free sex, as many as 63 % had free sex in the men's boarding house partner. as many as 14 % do at the women's boarding house or rented house. furthermore, 21 % in jasmine class hotels scattered in jogjakarta and 2 % in open tourist attractions. the data above shows that the boarding house has become a den for free sex. then the discovery of research in ponorogo that 80% of young women have premarital sexual relations while in young men, the percentage of data figures is slightly larger, this data is the result of a random survey over a period for six months conducted by the office of women's empowerment and child protection of ponorogo regency on december 17, 2010. adultery in the study ius constitutum based on the provisions of article 284 of the criminal code9, if men and women are both unmarried and have sex outside of the legal marriages, then it cannot be categorized as adultery and cannot be trapped by law. in other words, the provisions of article 284 of the criminal code, both directly and indirectly, provide opportunities for extramarital intercourse between men and women, each of which is not bound by marriage to another person. thus, if the case buys to justice10, it does not meet the elements of the article 284 criminal code criminal formula. however, judge bismar siregar made a shocking ruling where adultery by a single man and woman was given a decision in court. according to him, we should not only focus on formal law but also the law that carries out justice11. because the prosecutor included article 378 of the criminal code12 concerning fraud, which the word "goods" be considered an "object,” then-judge bismar siregar used the article to 9 pipin syarifin, delik perzinahan hukum pidana di indonesia (2000). 10 anis widyawati, pendekatan restorative justice sebagai upaya penyelesaian school bullying, yustisia (2014). 11 marenin, supra note 5. 12 dudung mulyadi, unsur-unsur penipuan dalam pasal 378 kuhp dikaitkan dengan jual beli tanah, 5 j. ilm. galuh justisi 206 (2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 175 available online at http://journal.unnes.ac.id/sju/index.php/jils uphold justice, in that case, the woman gave her honor and the man promised to marry her, therefore included in fraud because of broken promise the man. the existence of article 284 kuhp paragraph 1-5 clashes with the highest legal basis, namely the 1945 constitution in article 28b paragraph (1) and (2), article 28c paragraph (2), article 28d paragraph (1). article 28b paragraph (1) and (2) of the 1945 constitution, every person has the right to form a family and continue the descent through a legal marriage. article 28c paragraph (2) of the 1945 constitution, every person has the right to advance themselves in fighting for their collective powers to develop their society, nation, and state. article 28d paragraph (1) of the 1945 constitution, every person has the right to recognition of guarantees, protections and certainty of law that is just and equal treatment before the law13. the imbalance between article 284 of the criminal code and the 1945 constitution has made several applicants such as prof. dr. ir. euis sunarti., m.s., rita hendrawaty soubagjo, m.sc., dr. dinar dewi kania, and nine other petitioners to test the material to the constitutional court judge on april 19, 2016, in case number 46 / puu-xiv / 2016. material tests are carried out to request article 284 of the criminal code so that adultery is not only for men and women who are married, but adultery must be extended not only for people who are bound by marriage. this material test intends so that every individual is careful in the association so as not to fall into adultery, and this means that the applicant asks the constitutional court to formulate a new crime. however, the constitutional court considered the arguments of the petitioners were groundless according to the law so that the material test submitted by the applicant experienced rejection from the constitutional court judge. mahfud md explained, as a judicial institution, the constitutional court did not have the authority to create new legal norms, regulating to allow or prohibit an act was the domain of the legislature or legislators, namely the president and the parliament14. arranging to enable or prevent something is the legislative domain, not the judiciary domain. the constitutional court refused to give an interpretation because it regulates in the criminal code. adultery is still prohibited and now state in the draft penal code, and this was also strengthened by constitutional court justice 13 barda nawawi arief, bunga rampai kebijakan hukum pidana (2016). 14 moh. mahfud. md, politik hukum di indonesia (2019). http://journal.unnes.ac.id/sju/index.php/jils 176 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils maria farida, who said, the court did not have the authority to formulate new criminal acts because such power was in the hands of the president and the parliament. the constitutional court may not enter into the political realm of criminal law. criminal law products are born from criminal policy or criminal law politics that form code15. the constitutional court may not enter the political sphere of criminal law. adultery in the study ius constituendum legal politics is an activity of choosing and ways to be used to achieve specific social and legal goals in society16 political law is a policy of the state through the agencies of the state that are authorized to set the desired regulations, which expected to be used to express what contained in society and to achieve what is aspired (ius constituendum). and efforts to realize reasonable rules by circumstances and situations at a time. political law is the legal policy (legal policy) that would or has been implemented nationally by the government in its implementation through the development of legislation that has the core of lawmakers and renewal of legal materials that are considered foreign and or not by the needs of the creation (ius constituendum) of law required. the implementation of existing statutory provisions includes the affirmation of the functions of the institution and the formation of members of law enforcement17. thus, seen as part of legal politics, the politics of criminal law, according to barda nawawi arief, implies how to try or make and formulate excellent criminal legislation18. besides, running the politics of criminal law means holding elections to achieve the best results of criminal legislation, in the sense of meeting the conditions of justice and usability, to deliver effective and efficient results. policymakers can utilize the information 15 nina persak, beyond public punitiveness: the role of emotions in criminal law policy, 57 int. j. law, crime justice 47–58 (2019). 16 m. yasin al arif, penegakan hukum dalam perspektif hukum progresif, 2 undang j. huk. 169–192 (2019). 17 dian latifiani et al., advocate as law enforcer in the implementation of e-court, 11 int. j. innov. creat. chang. 439–449 (2020). 18 barda nawawi arief, pembangunan sistem hukum nasional (2012). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 177 available online at http://journal.unnes.ac.id/sju/index.php/jils provided by criminology. therefore, ignoring data from research results from criminology will result in the formation of laws that are not functional. another thing related to the politics of criminal law19 is how criminal law can appropriately formulate and provide guidance to legislators (legislative policy), application policy (judicial policy), and implementation of criminal law (executive policy). legislative policy is a very decisive stage for the next steps because when criminal legislation is about to be made, the direction to which the law intended is determined or, in other words, what actions deemed necessary to serve as something that is prohibited by criminal law, this means it involves the process of criminalization20. the criminalization, according to sudarto, can be interpreted as the process of determining an act of a person as an act that can be convicted. the process ended with the formation of a law whereby the act threatened with a criminal sanction21. in this connection, writes that the policy to make reasonable criminal law regulations cannot separate from the purpose of overcoming crime. meanwhile, the understanding of crime prevention is an effort to control crime so that it is within the limits of community tolerance22. policies adopted by the indonesian people in the context of carrying out criminal law reforms through 2 channels, namely: a. establishment of criminal legislation, which means to amend, add, and complete the current penal code. b. making draft penal code replace the current penal code. based on this, an effort must be made by the state with the reformulation of the crime of adultery in the upcoming criminal law policy. the crime prevention policy with criminal law is, in essence, part of the law enforcement policy23. therefore, crime prevention policies or commonly known as criminal politics (criminal policy), in essence, a reasonable effort from the community in tackling crime. this view is in line with the opinion 19 michael a. rustigan, a reinterpretation of criminal law reform in nineteenth century england, 8 j. crim. justice 205–219 (1980). 20 anis widyawati, regulations of penitentiary law in indonesia, 18 international journal of business, economics, and law. 53–59 (2019). 21 věra kalvodová & eva žatecká, unfair competition and its possible criminal sanctions, 12 procedia econ. financ. 283–287 (2014). 22 kent roach, four models of the criminal process, 89 j. crim. law criminol. 671 (1999). 23 murat c. mungan, the certainty versus the severity of punishment, repeat offenders, and stigmatization, 150 econ. lett. 126–129 (2017). http://journal.unnes.ac.id/sju/index.php/jils 178 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils of marc ancel who formulated criminal politics as the rational organization of the control of crime by the society24. the basis of religious values firmly held by the indonesian community and also found in the first sage of pancasila, which reads "almighty god." the importance of living in society also considers adultery an amoral act that not everyone can do. all religions in indonesia prohibit people from committing adultery. religion plays a vital role in indonesian law, namely the basic ethics of the state deriving from the divine morals found in religions. it refers to the 1 pancasila which says, "almighty god." besides, the teachings of belief adopted by the community influence the formation of values living in society. so, the instructions of religion, especially the universal ones, are fundamental to the structure of national25 law. the ethical26 approach is the mandate and at the same time demands of national development and national law development due to the national law system reforms27 that have always aimed at national law systempancasila. pancasila is a national wisdom / national genius that contains the three pillars of god (religious), humanitarian (humanistic), social (democratic, national and social) components. the existence of the component of the godhead means that in the course of the pancasila, it also contains "religious wisdom/ genius"28. adultery in addition to being against religious values, is also contrary to the law that lives in society (customary law). in customary law, adultery committed by a person who has one or both of them has bound by marriage. most indigenous people will provide sanctions in the form of ostracism, expulsion from customary associations, and others according to the provisions29 of the customary law of their area. according to lampung custom, it also regulated regarding the act of adultery committed by the wife or husband of another person mentioned in the kunta raja niti (krn) that 24 anis widyawati, akar konflik dalam masyarakat multikultural di karimunjawa, 93 yust. j. huk. 602– 616 (2015). 25 necula, supra note 4. 26 krzysztof szczucki, ethical legitimacy of criminal law, 53 int. j. law, crime justice 67–76 (2018). 27 jonathan d. casper & david brereton, evaluating criminal justice reforms, 18 law soc. rev. 121 (1984). 28 necula, supra note 4. 29 thomas marquenie, the police and criminal justice authorities directive: data protection standards and impact on the legal framework, 33 comput. law secur. rev. 324–340 (2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 179 available online at http://journal.unnes.ac.id/sju/index.php/jils an honest trial must be conducted and witnesses along with evidence30 with the penalty31 must pay fines32 and other costs33. whereas in the minangkabau custom, the sanction is in the form of being banished from the adat community and the death penalty. provisions of customary law will further emphasize how guilty of adultery because it is more animating the alliance of indigenous peoples themselves. indigenous peoples recognize that sanctions are givens for acts that violate have binding legal force as well as the criminal code because the penalties provided are decisions and agreements with customary associations and based on the decisions of traditional leaders. problems related to adultery that regulated in the criminal code are not by the moral values of the indonesian religious community. according to adat law adultery is not only done by married people. so whether married or unmarried if intercourse outside a legal relationship is still considered a prohibited act and is also called adultery. article 284 paragraph (1) of the criminal code stipulates that adultery can threaten with a nine-month prison sentence, both for the married offender and for those who have committed the act. however, according to customary criminal law, the severity or severity of the crime depends on the customary law applicable in each customary environment.34 as for the actions of reaction or correction of crime in the environment of indonesian indigenous peoples, the following steps known: a. reimbursement of material damages in various forms such as the compulsion to marry a defiled girl b. payment of adat money to those affected, in the form of magic objects as compensation for spiritual losses c. salvation (victim) to cleanse the community of all impurities d. a cover of shame or apology e. exile from the city and put people outside the legal system, and f. corporal punishment to the death penalty. 30 huw t.o. davies et al., criminal justice: using evidence to reduce crime, in what works?evidencebased policy and practice in public services 92–116 (2012). 31 michelle miao, two years between life and death: a critical analysis of the suspended death penalty in china, 45 int. j. law, crime justice 26–43 (2016). 32 thomas schröder, corporate crime, the lawmaker’s options for corporate criminal laws and luhmann’s concept of “useful illegality”, 57 int. j. law, crime justice 13–25 (2019). 33 stefan volk, helena nguyen & christian thöni, punishment under threat: the role of personality in costly punishment, 81 j. res. pers. 47–55 (2019). 34 miao, supra note 31. http://journal.unnes.ac.id/sju/index.php/jils 180 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesian criminal law (penal code) adheres to the principle of legality35, as stated in article 1 of the criminal code, that is, no act that may punish but on the strength of criminal rules in legislation that existed before the act committed. as a result of adopting this formal legality principle, the analogy interpretation should not use in determining the existence of a criminal offense while the principle of formal legality not known in traditional law. any act or event that is contrary to propriety, harmony, order, security, a sense of justice and legal awareness of the community concerned, whether it is due to someone's actions or the actions of the ruler himself, then the act or event is considered a customary offense. therefore, with the reason that humans will not be able to predict the future, the provisions in customary law are uncertain and open to all events or actions that may occur. the primary measure according to customary law36, is a sense of justice and legal awareness of the community by the development of circumstances, time and place. the principle of formal legality in article 1 paragraph 1 of the criminal code has expanded the source of law, namely the expansion of the principle of material legality that gives place to living law as a source of law, based on (a) the existence of various national legislative product policies after independence; (b) a sociological study of the characteristics of legal sources/principles of legality according to the views and thoughts of indonesians that are not too formalistic and fragmented/partial; (c) various results of customary law research; (d) scientific agreements / national seminars; and (e) different comparative study results and international meeting documents/ statements. the rule of law or certainty the law, both the 1945 constitution and the judicial power law do not use the terms legal certainty or law enforcement, but fair legal certainty (article 28d of the 1945 constitution) or enforce law and justice (article 24 paragraph 1 of the 1945 constitution and article 3 paragraph 2 of law no. 4 / 2004 became article 2 paragraph 2 of law no. 48/2009). so, there is the principle of balance between legal certainty and justice. besides that, both according to the 1945 constitution and the law on judicial power, the source of the law is not only the law but 35 kalvodová and žatecká, supra note 21. 36 widyawati, supra note 1. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 181 available online at http://journal.unnes.ac.id/sju/index.php/jils can also source from the code that lives in society. so, there is a balance between written legal sources and legitimate unwritten sources. reformulation of the substance of the law governing article 284 of the criminal code requires regarding adultery committed both by people who are not married and those who are married. the upcoming criminal law policy related to infidelity contained in articles 417-419 of the criminal code chapter xv criminal actions in decision part four adultery. article 417 (1) every person who has intercourse with a person who is not his husband or wife convict of adultery with a maximum imprisonment of 1 (one) year or a fine of category ii. (2) criminal acts, as referred to in paragraph (1) not prosecuted except for complaints from husband, wife, parents, or children. (3) the claims related to in paragraph (2) do not apply the provisions referred to in article 25, article 26, and article 30. (4) complaints can be withdrawn as long as the examination at a court hearing has not begun. article 418 (1) any person who lives together as a husband and wife outside of marriage shall sentence to a maximum imprisonment of 6 (six) months or a maximum fine of category ii. (2) the criminal offense referred to in paragraph (1) is not prosecuted except for complaints from husband, wife, parents, or children. (3) charges, as referred to in paragraph (2), may also be filed by the village head or by other names as long as there are no objections from the husband, wife, parents, or children. (4) the complaints referred to in paragraph (2) do not apply the provisions of article 25, article 26, and article 30. (5) claims can be withdrawn as long as the examination at a court hearing has not begun. article 419 “any person who has intercourse with someone he knows that that person is a family member in a straight line or sideways until the thirddegree sentenced to a maximum imprisonment of 12 (twelve) years”. one of the concerns of many parties related to the cohabiting article contained in the draft penal code, for example, article 417 paragraph 1 and http://journal.unnes.ac.id/sju/index.php/jils 182 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils article 418 paragraph 1. this article raises concerns, especially from the tourism industry in bali. many balinese entrepreneurs, who are troubled by the existence of materials of marriage or adultery37, where relationships without marital ties can be convicted, while many foreign tourists in bali cannot show marital status. the anxiety of many parties regarding the crime of adultery in the draft penal code, it would be nice if it should be contemplated based on the thought of the exact scientists who acknowledge the sophistication of god's knowledge, also contained within the legal scientist namely prof. mulyatno, prof. sudarto, prof. satjipto rahardjo, van hamel. according to the scientists constitutionally and formally juridical, it recognizes in various juridical statements, which in essence understand religious wisdom and local wisdom. in line with religious wisdom and ethical guidance, allah raises the degree of people who believe and have knowledge (qs: al mujadalah: 11), this means that the quality of human life according to the knowledge of god will be achieved if it based on the mental maturity (spiritual maturity) and the sophistication of intelligence (intellectual maturity). such expressions should contemplate because, recently, we have felt an erosion of the quality of legal life in society. there are many disasters in law enforcement, including corruption, legal mafia, cases that touch humanity and justice, rampant adultery, which ignores the divine and local/national values, which revolves around the declining quality of legal culture, especially religious/ethical/moral values, and scientific culture. all of them identified the impression of secularization and separation between the science of law and the science of god, between the norms of the law (written law) and the rules that live in the personality/identity of a religious nation. conclusion adultery in addition to being against religious values, is also contrary to the law that lives in society (customary law). the reformulation of adultery articles in the draft penal code adjusted to spiritual teachings, especially those that are universal because actual spiritual teachings are the basis or 37 ekow n. yankah, race, criminal law and ethical life, in the palgrave handbook of applied ethics and the criminal law 625–648 (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 183 available online at http://journal.unnes.ac.id/sju/index.php/jils reference in the formation of national law because of the renewal of national law system which has intended to aim is the pancasila national law system. references al arif, m. y. 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(2014). unfair competition and its possible criminal sanctions. procedia economics and finance 12(40), 283–287. https://doi.org/10.1016/s2212-5671(14)00346-3 latifiani, d., widyawati, a., fibrianti, n., & ningsih, a. s. (2020). advocate as law enforcer in the implementation of e-court. international journal of innovation, creativity and change 11(4), 439–449. marenin, o. (2019). the tragic core of criminal justice: coercive social control and the loss of innocence. international journal of law, crime and justice 58(august 2018), 91–99. https://doi.org/10.1016/j.ijlcj.2019.04.003 marquenie, t. (2017). the police and criminal justice authorities directive: data protection standards and impact on the legal framework. computer law & security review 33(3), 324–340. https://doi.org/10.1016/j.clsr.2017.03.009 miao, m. (2016). two years between life and death: a critical analysis of the suspended death penalty in china. international journal of law, crime and justice 45(1), 26–43. https://doi.org/10.1016/j.ijlcj.2015.10.003 http://journal.unnes.ac.id/sju/index.php/jils 184 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils moh. mahfud. md. (2019). politik hukum di indonesia. jakarta: pt raja grafindo persada. mulyadi, d. (2017). unsur-unsur penipuan dalam pasal 378 kuhp dikaitkan dengan jual beli tanah. jurnal ilmiah galuh justisi 5(2), 206. https://doi.org/10.25157/jigj.v5i2.798 mungan, m. c. (2017). the certainty versus the severity of punishment, repeat offenders, and stigmatization. economics letters 150(1), 126–129. https://doi.org/10.1016/j.econlet.2016.11.030 necula, m. i. 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(2019). corporate crime, the lawmaker’s options for corporate criminal laws and luhmann’s concept of “useful illegality.” international journal of law, crime and justice, 57(december 2018), 13–25. https://doi.org/10.1016/j.ijlcj.2019.01.004 simon, j. (2002). introduction: crime, community, and criminal justice. california law review 90(5), 1415. https://doi.org/10.2307/3481360 syarifin, p. (2000). delik perzinahan hukum pidana di indonesia. jakarta: cv pustaka setia. szczucki, k. (2018). ethical legitimacy of criminal law. international journal of law, crime and justice, 53(january), 67–76. https://doi.org/10.1016/j.ijlcj.2018.03.002 volk, s., nguyen, h., & thöni, c. (2019). punishment under threat: the role of personality in costly punishment. journal of research in personality 81(1), 47–55. https://doi.org/10.1016/j.jrp.2019.05.005 widyawati, a. (2016). penal mediation as an alternative dispute resolution of social. 9(4), 44–49. widyawati, a. (2019). regulations of penitentiary law in indonesia. international journal of business, economics and law 18(4), 53–59. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 185 available online at http://journal.unnes.ac.id/sju/index.php/jils widyawati, a. (2019). pendekatan restorative justice sebagai upaya penyelesaian school bullying. yustisia jurnal hukum 3(3), 27-37. widyawati, a. (2015). akar konflik dalam masyarakat multikultural di karimunjawa. yustisia jurnal hukum 93(3), 602–616. https://doi.org/10.20961/yustisia.v93i0.3688 yankah, e. n. (2019). race, criminal law and ethical life. in the palgrave handbook of applied ethics and the criminal law. cham, switzerland: palgrave macmillan, (pp. 625–648). https://doi.org/10.1007/978-3-03022811-8_26 about author anis widyawati is a lecturer at the law faculty of universitas negeri semarang since 2006. she obtained bachelor of law degree from faculty of law universitas jember and a masters of laws degree from diponegoro university. currently, the author is pursuing a doctor of law program at diponegoro university, semarang, indonesia. the focus of expertise includes criminal law, special criminal law, and penitentiary law. aside from being a lecturer, the author is also active in various research projects and scientific conferences both at home and abroad. in addition, the author also devotes himself as an instructor of anti-corruption of aclc anti-corruption commission of the republic of indonesia and spak (women voice of anticorruption) in central java. http://journal.unnes.ac.id/sju/index.php/jils 186 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils quote passion is the evil in adultery. if a man has no opportunity of living with another man's wife, but if it is obvious for some reason that he would like to do so, and would do so if he could, he is no less guilty than if he was caught in the act. saint augustine http://journal.unnes.ac.id/sju/index.php/jils https://www.brainyquote.com/authors/saint-augustine-quotes 149 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils volume 3 issue 02 november 2018 jils 3 (2) 2018, pp. 149-174 issn (print) 2548-1584 issn (online) 2548-1592 indonesian penal policy: toward indonesian criminal law reform based on pancasila mokhammad najih mokhammad najih faculty of law, universitas muhammadiyah malang (umm)  najihumm17@gmail.com table of contents introduction …………………………………………………….. 150 the concept of national penal policy ………………... 152 building the character of indonesian criminal law: an exploration …………………………………………... 158 pancasila as a source in the establishment of indonesian criminal law …………………………………… 161 formulation and recommendations of pancasila as a source of indonesian criminal law …………...…. 167 conclusion ………………………………………………………… 171 reference ………….……………………………………………….. 172 copyright © 2018 by author(s) this work is licensed under a creative commons attributionsharealike 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. mailto:najihumm17@gmail.com 150 mokhammad najih jils 3 (2) november 2018, 149-174 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on january 2018 approved on july 2018 published on november 2018 criminal law enforcement in indonesia has always been a very crucial and the sexiest issue. almost 35 years the idea of criminal law enforcement has been carried out and so far several concepts of the national criminal code have been born which continue to experience developmental dynamics that are quite interesting to study. the desire to realize a better criminal law and be able to fulfill the aspirations of the people is the ideal criminal law politics (penal policy). national criminal law must have characteristics that are typical of indonesia, authentic and original, encompassing customary law, systems of values and beliefs, characteristics of modern states and international values. pancasila as the source of all sources of law, which has not received serious attention needs to be used as a recommendation for the paradigm of penal reform. pancasila has at least the main principles that must be implemented in all formulations of criminal legislation. these principles are among others, principles based on the source of religious values (godhead / divine god), the value of humanity (humanism), the value of unity and peace, the value of democracy and the value of social justice. therefore, indonesian criminal law must have values that are based on pancasila, both in the form of legal norms (addresaat norm), on the types of acts that are regulated (straafbar), in the form of punishment or sanctions (straafmaat), as well as regulatory aspects and implementation of law enforcement law (formal law). keywords: penal reform, criminal law, pancasila, indonesian criminal law how to cite (chicago manual style) najih, mokhammad. 2018. “indonesian penal policy: toward indonesian criminal law reform based on pancasila”, journal of indonesian legal studies (jils), 3 (2): 149-174. introduction having an indonesian criminal law in the national legal system is a dream that to this day has not become real. it has been a long way for generations of criminal law intellectuals to still be incapable of embodying an ideal that wants to free themselves from the grip of the nails of the colonialism 151 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils product law (reksodiputro 1995; reksodiputro 2009) 1 . this is due to the legal politics of state administrators who are not consistently committed to resolving it, since the old order, new order regimes and the current reform order. looking at the history of the draft criminal code bill until 2012, it cannot be separated from the effort to reform the criminal code thoroughly. this effort began only after the recommendation of the results of the national law seminar i, on 11-16 march 1963 in jakarta calling for the draft codification of national criminal law to be resolved as soon as possible (saleh 1980). then in 1964 the draft criminal code was first issued and continued until 2012. thus it can be concluded that the universal/global/comprehensive criminal law reform effort is still a rechtside (legal idea) or ius constituendum, because it has not been ratified into a law (ius constitutum). this penal reform effort in its entirety can be considered as an implementation of the mandate of the founding fathers implicitly contained in article ii of the transitional rules. 2 if so, then the implementation of the ideals of the founding fathers of this nation could only begin after 19 years of independent indonesia. it is understandable that the effort to compile the criminal code can only begin in 1964 because during the period of 19 years (1945-1964), indonesia's political and state conditions were not stable. the draft of the 1964 criminal code was then followed by the following year's designs, namely the draft criminal code 1968, draft criminal code 1971/1972, draft basaroedin criminal code (bas concept) 1977, draft penal code 1979, draft criminal code 1982/1983, draft criminal code 1984/1985, draft kuhp 1986/1987, kuhp draft 1987/1988, draft kuhp 1989/1990, draft kuhp 1991/1992 revised until 1997/1998, and draft 1 this also emphasized that the government seriously formed a team to draft a new criminal code bill since 1981/1982 (35 years after independence). the experts included in the team, among others, prof. r. sudarto, prof. oemar seno adji, professor mr. reslan aleh, including prof. mardjono reksodiputro himself (as experts laying the foundation for the renewal of the criminal code), besides that there is prof. j.e saehatpy, prof. muladi, prof. barda nawawi arief, prof. romli atmasasmita and so on. however, the 1st concept can only be submitted on march 13, 1993, unfortunately the 1st concept (ruu kuhp 1993) at the time of oetojo oesman's minister was forgotten. only later on the term of the minister of justice muladi and then minister of justice justice yusril ihza mahendra was discussed again. in 1999-2000 the 2nd concept was published and then in 2004 the 3rd concept was published. then as far as the author in 2007/2008 was born the 4th concept and the last in 2012 was born the 5th draft criminal code bill. after approximately 32 years of struggle of the thought of reforming criminal law has experienced extraordinary dynamics, following the development and dynamics of society. the question that arises is a: will the concepts continue to develop? and when is the new national criminal code immediately? 2 article ii of the transitional regulation, confirms that the enactment of the regulations at the time was temporary. because before there was a new law, the old law was still used, even though it was a colonial product, until a new law was formed. this means that state administrators are required to carry out legal renewal as soon as possible, if they do not want the old law to continue to apply. 152 mokhammad najih jils 3 (2) november 2018, 149-174 http://journal.unnes.ac.id/sju/index.php/jils kuhp 1999/2000. then in 2004 the indonesian ministry of law and human rights issued the 2004 criminal code bill as a revision of the 1999/2000 criminal code bill, then the 2012 criminal code bill was published as a further development of the 2004 criminal code draft (bahiej 2006). thus it can be seen that legal experts in indonesia at least 14 times had drafted the criminal code (including the revision) for 49 years (from 1964 to 2013). it is a long journey and struggle of thought that is highly anticipated by the nation as one of the great works. this article wants to try to describe a small thought about the idea of reforming criminal law based on pancasila as the basis of the state. even though at the present stage it might be considered too late, but it still needs to be presented as an assessment material. since the proclamation of august 17, 1945, the spirit to liberate itself from colonialism was surging in the revolutionary struggle both physically and psychologically, morally and materially. but the struggle in terms of legal reform and regulations left by the invaders is still ongoing, although many conditions, these efforts have not received priority from politicians acting as legislators. outdated legal products are still being used in the name of „still relevant to current needs‟ and „have not been urgently replaced‟. this article will discuss the views relating to two issues, namely (1) how are the characteristics of criminal law reform that are in line with the legal needs of the indonesian people? (2) how to translate the principles of pancasila as the basis of the state and the source of all legal sources in the reform of the national criminal law? the concept of national penal policy since independence the desire to realize a national legal system is one of the main agendas in national development, as indicated by official state documents (lukito 2013). 3 the politics of national criminal law must be interpreted as the national will to create criminal law that is in accordance with the aspirations and values derived from the indonesian nation itself. in addition, criminal law can also participate to contribute to realizing the goals of the formation of the state (the ideals of independence), namely to realize a just prosperous state based on pancasila. 4 regarding to the politics of criminal law, the following opinions and thoughts will be put forward on the understanding and political concepts of 3 in official documents of bpupki, in discussing the 1945 constitution bill, was spearheaded by the freedom movement fighters. mr. supomo with his integralistic state conception, mr. m yamin with nationalism, also the thoughts of ir soekarno and muhammad hatta were among the figures who had the idea to shape the character and characteristics of the national legal system. in the new order era, the gbhn text actually scheduled these ideals, although in practice many experienced serious obstacles and challenges from academics and practitioners themselves. 4 the preambule of the 1945 republic of indonesia constitution 153 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils criminal law, as follows; sudarto argued that criminal law politics is defined as a rational (logical) effort to prevent and deter crime by means of criminal law and the criminal justice system. select laws and regulations that are appropriate, best and meet the requirements of justice and their functions. this also means that the politics of criminal law must consider the aspects of legal sociology and reach the future (sudarto 1981; sudarto 1983). according to salman luthan (1999) and muladi (1990) there are several factors that can be the reason for renewing criminal law; 1. existing criminal law does not conform to social development and the needs of the community concerned. laws and laws are no longer relevant to the social conditions of the people they wish to regulate, for example with the manifestation of new crimes; 2. a portion of the provisions in criminal law that are available, are not in line with the idea of renewal / reform that leads to the values of human rights, values of independence, justice, democracy and moral values that develop in society; 3. that the availability of criminal law enforcement that is available exists to create injustice and even damage human rights; 4. the available laws and criminal laws cannot guard and control public security and order. furthermore, muladi also stated that criminal law politics and renewal of criminal law must remain based on the three core and main substances of criminal law; first, formulate and determine the behavior or action referred to as criminal; second, determine the form of elements of criminal acts and their accountability; and third, determine the form or type of punishment that can be given to anyone who made the mistake. as referred to by barda nawawi arif, marc ancel (1965) stated that in modern criminal science, there are three main components of study in criminal law, namely; “criminology”, “criminal law” and “penal policy”. so to realize a good, progressive and realistic criminal law it is necessary to have an integrated collaboration between scientists (scholar) with practitioners (practitioners), between experts on crime (criminologist) with advocate or lawyers, so that prevention ideas can be united crimes with legal engineering ideas in the process of designing criminal law. 5 furthermore, marc ancel also provides an understanding of “penal policy” as a science of art which aims to enable legislation in criminal law to be better formulated and progressive so that it does not only provide guidance to the lawmakers, but also to law enforcers who carry out relevant legislation (arief 2005). in line with that, sudarto once stated three meanings about the politics of criminal law (criminal policy), namely: 5 in the author‟s understanding, legal practitioners include prosecutors, police, judges, notaries, politicians (legislators), if the lawyer is an advocate, legal consultant, lecturer and legal reviewer and the like. 154 mokhammad najih jils 3 (2) november 2018, 149-174 http://journal.unnes.ac.id/sju/index.php/jils 1. in a narrow sense, the whole principles and methods that form the basis of the reaction to violations of the law in the form of judgment; 2. in the broadest sense, is the overall function of law enforcers, including the way of working from the judiciary and the police; 3. in the broadest sense (taken from the view of jorgen jepsen), it is the overall policy carried out through laws and official bodies, which aims to uphold the central norms of society (sudarto 1981a; sudarto 1981b; prijatno 2004; arif 2005). thus, it can be concisely stated that the politics of criminal law (penal policy/criminal law policy/strafrechtpolitiek) can be interpreted as an effort to realize criminal legislation that is in accordance with current conditions and for the improvement of laws in the future, in accordance with the principles of justice and value benefits for society and the country (wisnubroto 1999). in line with that, peter hoefnagels at quoted by arif (2005) stated that criminal policy is the rational organization of the social reaction to crime (politics of criminal law is a form of social reaction to rationally organized crime), and some of the other terms expressed are as follows: 1. criminal policy is the sciences of responses; 2. criminal policy is the sciences of crime prevention; 3. criminal policy is a policy of designating human behavior as crime; and 4. criminal policy is a rational total of the responses to crime whereas a. mulder, calls criminal law politics as “strafrechtspoliitiek” which means as a guideline to determine; (1) how far the powerful criminal provisions need to be modified or modified; (2) what can be done to prevent the enactment of evil acts; (3) determine the method or procedure of judgment and carry out punishment by the power of judgment (winusbroto 1999; mulder 1980; onneweer 1994). then ifdal kasim understands the politics of criminal law as a policy, both to give an assessment of a human behavior as an evil or not evil behavior; the so-called criminalization and decriminalization of a behavior or action (kasim 2005). in this regard, the issue of choices towards a behavior determined equally exists as an act of crime or not, and the choice between the various alternatives that exist, regarding what is the purpose of the criminal law system in the future. thus the state is given the power to formulate and determine the behavior that is assessed and categorized as malicious behavior and form a form of judgment action that can be given to anyone whose actions fulfill the provisions of the relevant legislation (miller 2003; muncie 2002). 6 6 in the same contexts, also highlighted that criminalization is interpreted as manipulation (judging a behavior as a genius), that is a process carried out by the power of legislation to assess and determine a behavior that was not a criminal behavior and violate the law then determined as misbehavior by determining the level of punishment and who does it and discussed in the court. likewise, decriminalization is interpreted as a process of assessing 155 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils mardjono reksodiputro (chair of the national criminal code draft team 1987-1993) stated that the working group‟s approach to implementing criminalization and de-criminalization was to seek a synthesis of three rights, namely individual rights (civil liberties), community rights ( communal rights), as well as maintaining the political interests of the state (state‟s policy). the problem that applies is, is it easy to balance the three domains in question. because of this, failure to maintain a balance of these three interests (individuals, society and the state) will crush the basis of the legislation made, and there is a huge potential for "over-criminalization" to apply to one of the three domains (kasim 2005). from the description above, it can be understood that criminal law politics has different meanings with the term “renewal of criminal law regulation”. however, the political understanding of criminal law embraces the concept of renewal of criminal laws. it should be stressed that criminal law is just one part of the legal system in a country. nevertheless the politics of criminal law has a broad meaning, encompassing the renewal of written substantive regulations (laws, government regulations substituting laws/perpu, regional regulations, and other regulations), renewal of the law enforcement administration structure, and community culture in practicing the laws and regulations. in summary the basic legal rules can be drawn in two matrices as below. fig. 1 forms of basic formulation of legislation towards the basis of criminal law source: najih (2014) from figure 1 it can be explained that in general the criminal law politics is a part of the political law of the whole government, while legal and determining a behavior that all as genres and for the perpetrators may be discussed in the court, changing no longer as criminal behavior. 156 mokhammad najih jils 3 (2) november 2018, 149-174 http://journal.unnes.ac.id/sju/index.php/jils politics as a whole is a part of the program of wider vision / mission of government. while the outline of the broad and comprehensive government programs and policies of all walks of life, is strongly influenced by political ideology that controls the government. so criminal law politics is a small part of the draft policy implementation strategy and the development program of a state government. from this concept it can be studied and studied how political ideology relations dominate governance, its relation to the implementation of basic principles and principles of the nation which have been enforced through its constitution. 7 fig. 2 political position scheme of criminal law in legal politics source: najih (2014) furthermore, in figure 2 below, it can be explained that national politics of criminal law is part of the politics of national law as a whole, which is part of a broader program, namely the field of social welfare. that renewal of criminal law is part of the efforts of the state to realize social welfare, and 7 for the country of indonesia the basic principles of the country's objectives and the principles of national law have been enacted in the 1945 constitution of the republic of indonesia, as amended to the 4th of 2002. 157 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils among the outputs of the functioning of criminal law in society is to realize the objectives of the law itself. with regard to the matrix, the politics of criminal law can be shared in several forms of branches and the scope of criminal law politics, among others: 1. criminalization policy, a legal politics that focuses on efforts to formulate bad deeds as a renewed criminal act or form a new formulation in the drafting of laws, such as the making of a criminal code bill or certain criminal acts. included in this legal politics, is a policy relating to the abolition of an act which was originally a criminal act in a law which is not a decriminalization; 2. penal and non penal policy, criminal law politics that focuses on punishments in criminal law, types or kinds of penalties, forms of punishment, and means needed for that. including policies to evaluate the implementation of punishment, effectiveness of punishment, aspects of aspects that need to be corrected in accordance with the development of punishment principles; 3. judicial criminal policy, this section is a branch of criminal law politics that discusses and examines criminal justice systems and procedures, and discusses issues of judgment procedures, forms of judgment, and the like; 4. the policy of criminal law enforcement (law enforcement policy) is a part of criminal law politics that examines and discusses issues that need to be taken into account in implementing criminal law enforcement. this problem relates to law enforcement institutions, the needs and potential of its human resources, the professional aspects of law enforcement, infrastructure facilities that support law enforcement, and also aspects related to its legal culture. 5. the criminal justice administration policy is related to the administration of criminal justice. this policy is very close to the field of law enforcement and the implementation of punishment. this is related to the technical implementation of criminal justice, budget planning, management and procurement of assets, infrastructure, such as the need for fostering court buildings, prison buildings, storage buildings for confiscated objects or booty, criminal justice administration systems, and so on. from the description, the author would like to emphasize that the politics of criminal law, is one part of a “legal planning reform”—a welldesigned legal development plan—by paying attention to the accompanying aspects. starting from the state foundation as the main source along with its constitution (1945 indonesian constitution), political ideology of power, national development policy, legal politics and to politics of criminal law. from this description it is clear that pancasila as the basis of the state 158 mokhammad najih jils 3 (2) november 2018, 149-174 http://journal.unnes.ac.id/sju/index.php/jils becomes a source of substantive value and legal resources in carrying out the reformation and formation of national criminal law. 8 building the character of indonesian criminal law: an exploration in the opinion of the author, there are a number of things that must be considered and the characteristic must be understood and inspired by the initiators of the reform of indonesian criminal law, so that national criminal law has the characteristics of indonesia. first, that indonesian society is a pluralistic society, which has a diversity of customs and cultures, each of which has its own customary legal system, which must be protected, respected and recognized. second, that indonesian society has a religious system and beliefs that are adopted (religious systems). religious values are very influential in society, even in customary law and social relations. third, that as an independent country and the modern state of indonesia also has the desire to build its own legal system which has indonesian characteristics. and fourth, that indonesia cannot be separated from the influence of international development, relations between nations. human rights issues, democratization and the world or global economy-politics put pressure on forming and developing national law. a. support for the attention to the existence of the customary penal code long before it was formed the drafting team of the national criminal code bill (1981), in the congress of persahi ii in 1964. moeljatno offered a model of national criminal law sourced from the customary criminal law. moeljatno includes customary criminal law norms in national criminal law by emphasizing sanctions/convictions. he stated; "that to form the forthcoming national criminal code it is necessary to find a new conception in criminal law that is not foreign to the indonesian nation. the provisions of criminal law can be extracted from unwritten law or customary law with two conditions, namely (1) he must live within the indonesian community; and (2) it will not hinder the development of a just and prosperous society. that is, that unwritten legal rules must be accompanied by criminal threats. the existence of a criminal threat in the unwritten law is intended so that customary offenses will eventually expand into national law, so that judges are also authorized to determine it as a criminal act (moeljatno 1964; kadish, schulhofer, and barkow 2017). de facto, indonesia is a country that has a diversity of ethnic groups, a diversity of people with diverse social and cultural backgrounds. the intended 8 we can look back on the ideals of the founders of the state of pancasila in the fourth text of the main explanation of the opening of the 1945 constitution before the amendment. in the explanation it is called “the fourth point contained in the opening is the state based on the one godhead on the basis of just and civilized humanity. therefore, the constitution must contain contents that oblige the government and other state administrators to maintain noble human character and uphold the noble people's moral ideals”. 159 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils diversity has also been bound and appointed with a motto unity in diversity. the diversity is politically bound to be one by the only nation, homeland and language, namely indonesia; in de jure, socio-cultural diversity is also accompanied by a diversity of customary laws and customs which in some indonesian communities customary law and habits are still alive and developing in the middle -in the community, such as: papua, dayak, samin, bedouin and so on. therefore, the potential for the realization of criminal law pluralism in certain cases must be accepted, especially with the implementation of regional autonomy and decentralization in the implementation of regional government. b. the role of religious norms in the formation of national criminal law that in indonesian society even long before independence has made religion and belief in the almighty god the pillar of life. even a lot of customary law on indigenous peoples' units comes from religion, such as in the minangkabau community, javanese society, madurese society, balinese people, sundanese people, and others. empirically we have accepted the presence of regulations that apply specifically, such as in aceh (taufik, sarsiti, and widyaningsih 2016). but it should be remembered also that indonesia is also a country with a majority population of muslims but indonesia is not an islamic state. although islamic law does not become a joint and legal basis for managing the life of the community as a whole but in certain legal questions islamic law is used, which includes among others: marriage and inheritance, hajj, zakat, waqaf, and several other mu’amalah provisions. article 18b paragraph (1) of the 1945 constitution expressly states that “the state recognizes and respects customary law community units along with their traditional rights insofar as they are alive and in accordance with the development of society and the principle of the unitary state of the republic of indonesia”. c. the intention to renew national criminal law in a planned modern state legal system (state of law) penal reform as a national will needs to also pay attention to several important principles in the indonesian state system which are related to this description, namely a system based on the principles of the rule of law, constitutional principles and democratic principles. these three principles are interrelated and mutually supportive losing just one of the principles will result in a limping of ideal legal politics. the principle of the rule of law contains three main elements, namely the separation of powers (check and balances), guarantee of free judicial power (due process of law), and guarantee of protection of human rights. furthermore, in the state of law, the task of state administrators, especially the government is very broad, namely creating, maintaining the administration of order, security and welfare of its citizens in the broadest sense. in addition, constitutional principles require that each state implementing agency has only the constitutionally regulated corridor and based on the mandate given by the constitution. 160 mokhammad najih jils 3 (2) november 2018, 149-174 http://journal.unnes.ac.id/sju/index.php/jils in a state system such a variety of political products, in the form of political policies and legislation are born, including national criminal law. in the paradigmatic framework that is such a political product as a source of law as well as a source of binding power. law is expected to be able to accommodate all the interests of various layers of society, so what is meant by law is what is in the legislation that has been ratified by the state institution that has the authority to do so. this political condition and configuration greatly influences the configuration of legal products (mahfud md 2008). therefore the importance of every holder of power to uphold the values of pancasila (moral and ethical) is very important. thus the moral values, ethics and interests of the people that exist in social reality remain the idealized sources of law that will always control and give birth to new positive laws through the process of change, correction and formation of new legislation, even though the rulers differ in their political flow. d. influence of values that are campaigned by the international world (the issue of universal human rights and democratization) national penal reform also cannot be separated from the influence of values developed by the international community. in fact, the indonesian state has been actively involved, becoming a state party in every important convention between nations. for example, indonesia participated in becoming a party to ratifying the un convention on human rights, antiviolence conventions, anti-corruption conventions, convention on drug control issues, anti-trafficking conventions, child and women's protection conventions and so on. as a state party, the indonesian state is bound to implement these conventions in the form of incorporating these international values and norms into the relevant legal products and regulations, although sometimes the government requests exemption (reservations) in certain norms. in line with the description above, muladi provides five characteristics of indonesian criminal law in the future; first, the upcoming national criminal law is formed not only for sociological, political and practical reasons, but must be consciously arranged in the framework of the national ideology of pancasila. second, national criminal law must not ignore aspects of the human condition, nature, and traditions of the indonesian people. third, the upcoming criminal law must be able to adjust to the universal tendency that grows in the international community. fourth, national criminal law must consider preventive or crime prevention aspects, and fifth, national criminal law must always be responsive to every form of development of science and technology (muladi 1990). thus the character of indonesian criminal law is a criminal law that can openly accept the value system that developed in the community regulations, by making the pancasila ideology as an assessment parameter and at the same time as a source of value which is the main standard. 161 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils pancasila as a source in the establishment of indonesian criminal law on 2000, the mpr through the mpr tap no. iii of 2000 concerning the source of law and order of legislation has asserted that pancasila is the main legal source in the formation of laws in indonesia (subandi h 2003). 9 in the tap mpr, several sources of written law are determined as follows: (1) pancasila, (2) opening of the 1945 constitution; (3) body of the 1945 constitution and its amendments; (4). determination of the people's consultative assembly; (5) constitution; (6). legislation; (7) government regulations; (8) presidential decree; (9) local regulation. then in 2004 law no.10 of 2004 concerning the establishment of legislation regulations was enacted, in article 2 it was stated that “pancasila is the source of all sources of state law”, and replaced with law no. 12 of 2011 concerning establishment of legislation regulations (uup3u), where in article 2 it still regulates the same thing, that “pancasila is the source of all sources of state law.” 10 then the explanation of article 2 is stated, that; "the placement of pancasila as the source of all sources of state law is in accordance with the intention of the preamble of the 1945 constitution of the republic of indonesia in the fourth paragraph namely ketuhanan yang maha esa, kemanusiaan yang adil dan beradab, persatuan indonesia, kerakyatan yang dipimpin oleh hikmat kebijaksanaan dalam permusyawaratan/perwakilan, and keadilan sosial bagi seluruh rakyat indonesia. put the pancasila as the basis and ideology of the state and at the same time the philosophical basis of the state so that every contents of the laws and regulations must not conflict with the values contained in the pancasila. 11 in line with that, then article 5 regulates the principle of establishing legislation, there are 7 principles; (1). principle of clarity of purpose; (2) the right institutional or forming principle; (3) the principle of conformity between types, hierarchies, and material content; (4) principles can be implemented; (5) principles of usefulness and usefulness; (6) the principle of clarity of 9 before the tap mpr, in the decree of the mprs no. xx/mprs/1966 which contains the title of the dpr-gr memorandum concerning the sources of legal order in the republic of indonesia and the order of the legislative regulations of the republic of indonesia, in its appendix stated as follows: pancasila: source of all legal sources. 10 in considering law 12 of 2011, it was stated that one of the reasons for replacing law 10 of 2004 was that the old law contained shortcomings and had not been responsive to the development of community needs, in the process of establishing legislation. 11 the complete sound of the opening of the 1945 constitution in the 4th paragraph which reads; “then than that to form an indonesian state government that protects the entire indonesian nation and the entire indonesian bloodshed and to promote public welfare, educate the nation's life and to carry out world order and social justice, the indonesian independence was established in a republican constitution indonesia which has people's sovereignty based on; the one godhead, just and civilized humanity, indonesian unity and popularism are led by wisdom in deliberation/representation, and by creating a social justice for all indonesian people”. 162 mokhammad najih jils 3 (2) november 2018, 149-174 http://journal.unnes.ac.id/sju/index.php/jils formulation; and (7) principle of openness; this spirit then in article 6 of uup3u 2011 is regulated on general principles for the formation of laws and regulations. besides that in the preambule (introduction) of the 1945 constitution, the expressions of several points of mind that can be used as guidelines in the implementation of nation-building, including being implemented in the form of legislation, as described below. (nur 2013; sudjito and hariyanti 2018; jhoner 2018). 1. unity indonesian nation is a pluralistic nation consisting of a variety of cultures, customs and groups, the birth of various diversity will actually raise problems such as division, if not based on a philosophy contained in the third precept of the pancasila which reads “indonesian unity” strengthened in article 1 paragraph (1) of the 1945 constitution “the state of indonesia is a unitary state that has a republic” it has become the most basic base since the indonesian nation became independent, so that with the unity and unity of the nation there is a mutual respect for each difference. it's just that in my opinion, what happens at this time is that mutual respect and respect for each difference is even further out of its essence, meaning differences between ethnic groups, races, cultures, religions, etc. as if it has entered into the form of “intervention” it has very thin boundaries so that the diversity actually creates a variety of interpretations as well. this is actually what back-fires our nation. the solutions to this will be discussed further in the conclusions and suggestions chapter. 2. social justice article 33 paragraph (4) “the national economy is organized based on economic democracy with the principle of togetherness, efficiency with justice, sustainability, environmental insight, independence, and by maintaining a balance of progress and unity of the national economy”. from the contents of the article it is reflected that the indonesian nation wants every citizen to carry out their obligations and guarantees to obtain rights and fair treatment in particular social and economic status. but in its application, as we all know, there is a great deal of discrimination and inequality in various ways, the cause is none other than social status and power, meaning that welfare guarantees seem to be the main reason for groups with high positions to obtain various benefits for various reasons . whereas in the form of the second principal institution, it can be seen by the existence of a social department tasked with resolving various social problems, while in the legislative field reflected in each judge's decision always contains a clause “for the sake of justice based on the supreme divinity.” 3. popularism as an embodiment of a democratic state, one of the main pillars is the freedom of the people to channel their aspirations, thoughts and interests. huntington 1994) emphasizes that widespread political participation is a 163 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils hallmark of political modernization. also in robert dahl's opinion, the practice of democracy always involves two dimensions, namely competition (contestation) and participation (budiardjo 1984; hutington 1994). the people are always the ones who determine the direction of democracy and national development, through an agreed mechanism as stipulated in the applicable legislation. in this connection the 1945 constitution has also regulated the system of democracy in the administration of the state. like the electoral system, the system of the executive, legislative and judicial powers. 4. almighty godhead and fair and civilized humanity article 29 paragraph (1) of the 1945 constitution states; “the state based on the almighty godhead” of these provisions implies that, indonesia is a country that wants and recognizes its religious community members in a broad sense. the meaning is that the state protects and accepts a value system that lives and comes from various different tigers of religion. although the majority of the people are muslim but it does not mean that the state only protects the majority religion, as stipulated and confirmed in article 29 paragraph (2) “the state guarantees the freedom of each citizen to embrace their respective religion and worship according to their religion and belief”. these constitutional provisions prove the acceptance of pancasila as the basis of the state and the national ideology of the indonesian nation. this brings a logical consequence that the values of the pancasila are used as the basic foundation, the fundamental foundation for the implementation of the indonesian state (siswanto 2017). 12 pancasila contains five precepts which essentially contain five fundamental fundamentals values. the basic values of the pancasila are the value of the one godhead, the value of just and civilized humanity, the value of indonesian unity, the value of the people led by wisdom of wisdom in deliberation/representation, and the value of social justice for all indonesian people. in short, the basic values of pancasila are the values of godhead, the value of humanity, the value of unity, people‟s value/democracy, and the value of social justice can be described as follows. a. godhead value this godhead value has the intention that indonesian society is a society that has a value system that is based on the values that are derived from religious teachings. acceptance of religious belief systems, religious systems have long been rooted in the traditions of society. these are the potentials of the indonesian nation which have continued to be explored and developed into a national value system through the process of crystallization in every regulation. whereas the values in the religions that are the beliefs of the indonesian people are used as guidelines in formulating each policy, every action. the godhead value also means that there is recognition of tolerance for religion, respect for religious freedom, 12 as the consequences, pancasila should be reflected on all indonesian people activities, including the state activities. 164 mokhammad najih jils 3 (2) november 2018, 149-174 http://journal.unnes.ac.id/sju/index.php/jils no coercion and no discriminatory acts between religious people. this brings the meaning that pancasila is a binding value in people's lives, and not vice versa. b. value of humanity the value of humanity which implies that the existence of the indonesian people must place themselves as whole human beings, respect themselves as human beings and respect other human beings such as respecting themselves. the necessity in universal humanitarian principles is carried out in the realm of just and civilized independence. this principle implies that awareness of attitudes and behavior is in accordance with moral values in living together on the basis of the demands of conscience by treating things as they should. in the context of law formation, the law is placed as a means to regulate human protection (law for humans), and not otherwise humans create laws to suppress other humans (not humans for law). c. unity value the value of indonesian unity implies that diversity must be accepted as a national reality that cannot be rejected by the indonesian people. that in indonesian nationalism is driven by diversity. the majority attitude should not be developed to overcome the minority, and vice versa. the equality of rights and obligations in the life of the nation and state are united in the unity of the people to foster a sense of nationalism in the unitary state of the republic of indonesia. the unity of indonesia, this value also means that diversity must be merged into the national values that the indonesian nation has. d. popular value the value in the 4th principle of popularism led by wisdom of wisdom in consultation/representation" confirms that the unity of the indonesian nation must be managed with a democratic system that is typical of indonesia. that indonesia's democratic values prioritize consultation, through democratically elected representatives. the community is given the opportunity to engage openly in a democracy that is guided by an indonesian value system. this also implies a government of the people, by the people, and for the people to be run by means of deliberation and consensus through representative institutions. e. value of justice the value of social justice for all indonesian people implies that justice is both a basis and a goal. that divine values, human values, values of unity and people's values / democracy are guides to creating social justice systems. the value of social justice becomes the goal to be achieved by implementing the values that were previously. with this achievement, national goals can be realized, namely the achievement of a just and prosperous indonesian society outwardly or inwardly. 165 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils the epistemological concept as emphasized by nur (2013) and sugara (2018) is as follows, that the value of the first precepts (sila) of the one godhead which is symbolized by the light in the middle of the star-shaped shield of the pancasila is five. at the state level or constitutional law, namely the current knowledge of legislation, the reality of legal semiotics is realized/described as "principles of balance, harmony and harmony" (explanation of article 6 paragraph (1) letter j of law number 12 of 2011) , i.e., that every material of the contents of the legislation must reflect balance, harmony and harmony, between individual interests, society and the interests of the nation and state and this principle in semiotics the law remains the central basis, therefore in semiotics the first precepts are placed in the middle of the red and white shield and placed on its own black shield as the natural color and the sila i which is symbolized by the light in the middle of the fivepointed star shape shines all the values into the other four precepts or becomes light, namely sila ii, iii, iv and v or become a guide star for the other four precepts/sila. theoretically or conceptually, it can be explained the construction of its legal semiotic model, namely sila i to be the light of the principle of civilization which is just and civilized which is symbolized by a chain string with eyes and circles in the lower left part of the pancasila shield. the meaning is that progressive law reflects human rights or obeys humanitarian principles (explanation of article 6 paragraph (1) letter b of law number 12 of 2011), meaning that every material in the contents of legislation must reflect the protection and respect for human rights humans and the dignity of every citizen and citizen of indonesia proportionally and obediently also on the principle of unity in diversity (explanation of article 6 paragraph (1) letter f of law number 12 year 2011), meaning that any material content of legislation must not be contains things that are distinguishing based on background, including; religion, ethnicity, race, class, gender, or social status as well as any material content of legislation must reflect balance, harmony, and harmony, between the interests of individuals and society with the interests of the nation and the state and also obedience to the principle of equality in the law and government (explanation of article 6 paragraph (1) letter h of law number 12 of 2011), which means that each content matter of the laws and regulations must pay attention to the diversity of population, religion, ethnicity and class, regional specific conditions, and culture specifically concerning problems sensitive in the life of the community, nation, and state. then sila i becomes the light of the third principle of indonesian unity symbolized by the banyan tree in the upper left of the pancasila shield, the meaning of progressive law obeys the principle of national explanation (article 6 paragraph (1) letter c law number 12 of 2011), it means that every material contained in the laws and regulations must reflect the nature and character of the indonesian nation that is pluralistic (diversity) while maintaining the principle of the unitary state of the republic of indonesia. 166 mokhammad najih jils 3 (2) november 2018, 149-174 http://journal.unnes.ac.id/sju/index.php/jils then the sila i becomes the basic light of the fourth principle which is led by wisdom in consultation / representation symbolized by the head of the bull on the right side of the pancasila shield, because legal products in this case legislation are the result of wisdom as the manifestation of the essence of democracy for translate people's voices without disregarding the voice of government (state) interests, meaning, that progressive law must obey the principle of family (explanation of article 6 paragraph (1) letter (d) of law number 12 of 2011), meaning that any legal content . the law must reflect deliberation to reach consensus in every decision and obey the principle of guidance (explanation of article 6 paragraph (1) letter (a) of law number 12 of 2011), meaning that any material content of legislation must function to provide protection in order to create peace of society. then the sila i become the light of sila v as a basic of justice for all the indonesian people symbolized by cotton and paddy in the lower right part of the pancasila shield. the meaning is that progressive law must realize a sense of community justice, or obey the principle of justice (explanation of article 6 paragraph (1) letter g of law number 12 year 2011), meaning that every material contained in the legislation must reflect proportional justice to every citizen without exception and also obey the principle of mediation (explanation of article 6 paragraph (1) letter e law number 12 of 2011), meaning that every material in the content of the laws and regulations always takes into account the interests of the entire territory of indonesia and the contents of the law invitations made in the regions are part of the national legal system based on pancasila and also obey the principles of order and legal certainty (explanation of article 6 paragraph (1) letter i of law number 12of 2011), meaning that any material contained in the laws and regulations invitations must be able to create order in society through guaranteeing legal certainty. 13 thus at the level of planning the drafting of laws in the national legislation program as a priority scale of the program for establishing the law within the framework of the national legal system based on the 1945 pancasila and the state constitution of the republic of indonesia. is in accordance with the opening of the fourth paragraph of the 1945 constitution of the republic of indonesia and at the same time placing pancasila as the basis and ideology of the state and at the same time the philosophical basis of the state so that the content of legislation must not conflict with the values contained in the pancasila concept of reading in line with the legal semiotics of pancasila reading based on the state symbol of the republic of indonesia (article 48 paragraph (2) of law number 24 of 2009 concerning the state symbol), namely the reading of the pancasila with an affiliated logo 13 what is meant by national legal system is a legal system that applies in indonesia with all its elements and supports each other in order to anticipate problems that arise in the life of the nation, state and community based on pancasila and the constitution of the republic of indonesia, explanation of article 17 of act number 12 of 2011. 167 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils centrism. 14 in that context, then law no. 11/2012 requires that the establishment of laws and regulations must also implement the principles of its formation, as stipulated in articles 5 and 6 as described in the previous discussion. formulation and recommendations of pancasila as a source of indonesian criminal law from the discussion of the characteristics of national criminal law and pancasila as sources of national criminal law, then at least two standards are needed which show that the pancasila is used as the main reference which is, first, it is necessary to affirm the formulation of the objectives of national criminal law, and second, what values should be implemented from the formulation of the provisions of national criminal law. 1. purpose of national criminal law if we look back at the history of state formation, we will find a national agreement that the 1945 constitution needs to oblige the government and other state administrators to maintain noble human character and uphold noble people‟s moral ideals and high faith. 15 one of the functions of criminal law is to safeguard and maintain the behavior of citizens rather than do evil and immorality. in this section the author wants to provide a description of how the formulation of the objectives of national criminal law was formed, as an effort to implement pancasila as a source of law; that the purpose of national criminal law must encompass the following objectives. a. national criminal law aims to protect the principles of godhead and religion that live in indonesia. so all values that are derived from religious teachings and which are trusted by the indonesian people have a place in criminal law. thus, the norms stipulated in criminal law must regulate orders or prohibitions that may not conflict with the belief / 14 affiliated logo-centrism or logosentrisme berthawaf, this idea was expressed by sultan hamid ii who created the symbol of the geruda pancasila. in the transcript of sultan hamid ii, april 15, 1967 on page 7, it was stated that "... the philosophy of" thawaf "contains a message, that idea of pancasila can be explained together in developing the country, because it is “thawaf” or a turn according to the borneo language the meaning of making a rebuild/vermogen which has an objective on the clear objectives, if a just and prosperous society which co-exists harmoniously and peacefully, that is according to his excellency president soerkarno, the direction of his philosophy is intended at the end, if he builds a moral state but still upholds the religious values of each religion are high in the people of the nation in the part of the ris region and continue to have the original character of the nation in accordance with the identity of the nation/the development of "nation character building" as explained by president soekarno. 15 the fourth point contained in the "opening" is the state based on the one godhead on the basis of just and civilized humanity. therefore, the constitution must contain contents that oblige the government and other state administrators to maintain noble human character and uphold noble people's moral ideals. 168 mokhammad najih jils 3 (2) november 2018, 149-174 http://journal.unnes.ac.id/sju/index.php/jils religious system recognized in indonesia. such as prioritizing the principle of benefit rather than harm, prioritizing justice rather than legal certainty, and the like. b. national criminal law aims to protect the human body and soul of indonesia. that the purpose of regulating legal norms in national criminal law must pay attention to the human body and soul. in the second principle of pancasila, humanity principles are born. then the formulation of the norms of reparations are prohibited and or governed by criminal law to protect the human body and soul. included are norms regarding punishment, also paying attention to humanitarian principles. this principle of protection does not mean to also let humans exercise their right to life freely. c. the national criminal law aims to protect indonesian human reason. that the formation of criminal law must be able to protect the power of creativity, reasoning / thinking power. although criminal law must not guarantee that humans can act as freely as possible, it also does not mean that criminal law restricts freedom of human creativity. then the norms relating to the protection of human creativity must still rely on the values contained in the pancasila. d. national criminal law also aims to protect offspring (regeneration of human / indonesian people); that in formulating an act as a criminal act (straafmaat), formulating a form of punishment, it must be able to ensure that aspects of the honor protection of indonesian regeneration adhere to religious values. like, national criminal law must guarantee the protection of marriage institutions, family institutions, and social relations among individuals. that criminal law does not allow freedom of association which makes it unclear the legal relationship between generations. the values of commandments, prohibitions in religious teachings must be accepted and followed. e. national criminal law aims to protect indonesian human property. the norms of actions that damage property, damage the natural environment, abuse of power / authority, corruption, collusion and nepotism (kkn) must be the center of attention. that the norms formed by criminal law make people not greedy for material things, and merely worldly (hedonism). however, on the contrary, humans should not have difficulties and lack of property, the prohibition on monopoly on property, prohibition on hiding assets, laundering money and so on must be a clearer formula. 2. pancasila values implemented in the criminal law a. godhead value that in the godhead system it gives birth to many norms and systems of teachings which are believed to bring good and benefit to humans. such norms of conduct which are prohibited in religion or sourced from religious teachings need to be the norm in criminal law. religion teaches not to commit adultery, drunkenness, stealing, corruption, killing, cheating, robbing, bribery, actions that harm other 169 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils people, are prohibited from damaging the environment and the like. the formulation of norms of criminal acts in criminal law must at least fulfill the system of religious teachings, including the norms for giving sanctions. b. value of humanity, that criminal law is established for humans not the opposite of humans for criminal law. therefore, criminal law norms also need to prioritize fair responsibility, the qualifications of civilized actions, as well as the determination of just and civilized punishment. national criminal law must not destroy the principles of humanity and human rights. criminal law is enforced, and enforced by paying attention to human needs in the community and the surrounding environment. in the context of punishment / punishment then it must be considered a. the quality of the mistakes of the maker of a criminal act; b. the motive and purpose of committing a crime; c. the attitude of the maker of a criminal act; d. whether a crime is committed by planning; e. how to commit a crime; f. attitudes and actions of the maker after committing a crime; g. curriculum vitae and social and economic conditions of the maker of criminal acts; h. criminal influence on the future of the maker of a criminal act; i. the effect of criminal acts on victims or families of victims; j. forgiveness from victims and/or their families; and/or k. the community's view of the crime committed. then in terms of the aspect of lightening or the lightness of the deed, the personal condition of the maker, or the situation at the time of the action or later, it can be used as a basis for not imposing criminal acts or taking actions taking into account aspects of justice and humanity (widjoyanto 2014; soge, and munthe 2018). c. the value of unity and entity that criminal law norms contain provisions that make the people of indonesia able to realize the values of nationalism. the acceptances of religious norms, customs, laws that live in society, make the norms of criminal law easy to implement and the purpose of criminal law is easy to realize. the implementation of criminal law norms does not cause hostility between victims and perpetrators, does not cause disputes between law enforcement agencies and the like. the concept of “restorative justice” is in line with the values of unity (maghfirah, arisandy, risandy, and hilimi 2016; yusriando 2015; daly 2016). 16 d. community value/democracy and representative consultation, where the formation of criminal law norms uses procedures that are democratic, open, fair, participatory. in addition to the notion of "legality" also need to consider "living law". as in the criminal code bill article 1 paragraph (3) affirms the partiality of the "living law" legal values that live in the community. this provision does not reduce the entry into force of the living law in the community which determines that a person is liable to be convicted even though the act is not regulated in legislation, insofar 16 the restorative justice is an approach where victims, offenders, and community who are involved and/or affected by crime put real efforts to heal the harm and put things right after the crime has been committed, and this type has various forms and implementations. 170 mokhammad najih jils 3 (2) november 2018, 149-174 http://journal.unnes.ac.id/sju/index.php/jils as it complies with the values of pancasila and/or general legal principles recognized by the peoples of the nations. providing opportunity to resolve through the mechanism of mediation, in the settlement of criminal acts (reasoning mediation), in certain criminal acts, is a model that needs to be considered in the formation of new criminal law. e. social justice values, welfare aspects, security, protection; the use of criminal law must also take into account the principle of costs and results. the use of criminal law must also pay attention to the capacity or ability of the work force of law enforcement agencies, namely not to have overloading. the values that develop in the community need to get a positive response in the formation of criminal laws. new criminal law needs to consider various dynamics of society, such as the need for transitional justice oriented to protect the interests of victims. there is debate about the struggle between kantianism vs. utilitarianism and there was a struggle between the civil law and common law systems, also the value of indigenous people is faced with the reality of digital society, the existence of secularist understanding dealing with religious communities (maghfirah, arisandy, risandy, and hilimi 2016; yusriando 2015; daly 2016). thus the right legal parameters are needed so that enforceability can be easily achieved, therefore the provisions established must meet the establishment of criminal law norms also ideally need to consider the following criteria (kusuma 2009). 1) necessity, that the law must be formulated in accordance with systematic and planned needs; 2) adequacy, that the formulation of legal norms must have a high level of certainty, 3) legal certainty, that the law must really contain the rules clearly and clearly, not vaguely and not cause interpretation; 4) actuality, that the law must be able to adjust to the development of society and times, without ignoring legal certainty; 5) feasibility, that law must have accountability that can be accounted for especially with regard to the level of its arrangement; 6) verifiability, that the law framed must be in a condition that is ready to test objectively; 7) enforceability, that in essence continues to have forced power to be observed and respected; and 8) provability that the law must be made in such a way so that it is easy to prove. from the discussion above, in principle the writer wants to suggest that the acceptance of pancasila as a source of all legal sources in compiling criminal law must be based primarily on pancasila as the ideology of the nation. thus, the norms that need to be formulated in the provisions of national criminal law must be based on the values that live in the pancasila ideology, which makes the principle of “one and supreme godhead, 171 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils ketuhanan yang maha esa” is the center and which becomes the light for all values systems. a. the indonesian nation is a nation that has a strong communalism spirit, and reduces its individualistic spirit. therefore, the attention of criminal law must prioritize common interests, because criminal law is public law (adrresat norm) b. norms that are prohibited from religious teachings must be part of an act of 'criminal act' (strafbaar). national criminal law is formed no longer distinguishes whether this is an act of public or private territory, because the system of values of pancasila has no individual problems (privacy) or public (communal) problems, c. the principles offered by the universal / international value system must be filtered and assessed by the pancasila standard before being accepted as a norm system in indonesian criminal law. that not all systems agreed upon by the international world are in accordance with the needs of the formation of indonesian values. d. the purpose of understanding, (standard maat) for pancasila as the source of all sources of law, then the purpose of punishment and punishment must pay attention to the principles of balance. the purpose of criminal law and punishment is to provide a balance between criminal acts, criminal offenders, victims of criminal acts and community value systems. so that the death penalty is still relevant to be applied in certain criminal acts. e. the formulation of elements of criminal acts is simpler and easier to prove, using good and correct indonesian language standards. therefore the formulation of the subject matter of the law (adrresat norm), criminal acts (straafbaar), forms of threats of punishment/sanctions (straaf maat). including the implications relating to its procedural law (formal criminal law) and its criminal justice system. conclusion this article is still explorative, so it still needs further exploration and study, on aspects of value system adoption that can technically be juxtaposed with the norm system that is intended to be formed in material and formal criminal law. at the end of this article, the author would like to conclude by pointing out some interesting questions to be explored further from this theme; can pancasila be used as a test stone for every product of legislation. who has the authority to determine the rules is against the pancasila or at least does not contain normative values contained in the pancasila. how to describe the normative values of the pancasila so that it can easily be used as a benchmark or standard in evaluating a statute not pancasila? so that on one occasion the indonesian people can also test materially and formally a law, contrary to the pancasila source of all legal sources. 172 mokhammad najih jils 3 (2) november 2018, 149-174 http://journal.unnes.ac.id/sju/index.php/jils again, it must be stressed that the effort to make pancasila as a source of values does not just stop at 'determination' in paragraph 2 of law no. 11/2012, that pancasila is the source of all sources of law. but concrete formulation is still needed to be used as a guide in formulating the content of all regulations that are still not getting real attention. the reality of the pancasila as the basis of the state makes pancasila the central inspiration in forming and building legal character nationally requires serious understanding and attention. this writing is a reflection of thinking that is still very premature, still needs a more mature study. it is an honor if the readers are pleased to provide constructive input or criticism of the central idea of this paper, so that it can be further developed. reference arief, barda nawawi. beberapa aspek kebijakan penegakan dan pengembangan hukum pidana. bandung: pt citra aditya bakti, 2005. bahiej, ahmad. “selamat datang kuhp baru indonesia! 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legal studies) volume 7(1) 2022 i available online at http://journal.unnes.ac.id/sju/index.php/jils editorial translating the meaning of justice and legal protection: what exactly is justice? ridwan arifin faculty of law, universitas negeri semarang, semarang, indonesia  ridwan.arifin@mail.unnea.ac.id justice has many meanings, dimensions, and even approaches. not only in one country, but universally justice could be the same concept on one side, but it could also be different on the other side. various views on the concept of justice also differ, influenced by the development of society, culture, social, or even the ideology of a country.1 several figures also have their own views on an important question: what exactly is justice? plato, for example, believes that justice is the gift of rights that every human being has. he believes that justice in society is achieved when every member of society gets his 1 erakat, noura. "justice for some." in justice for some. stanford university press, 2019; forrester, katrina. "in the shadow of justice." in in the shadow of justice. princeton university press, 2019; nolan, james l. "reinventing justice." in reinventing justice. princeton university press, 2021. a discourse of justice and legal protection in domestic and global perspective published by faculty of law, universitas negeri semarang, indonesia volume 7 issue 1, june 2022 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils http://orcid.org/0000-0003-2782-1266 ii jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils rights. the acquisition of this right can occur if every individual in society gets a position that is in accordance with his abilities. the theory of justice put forward by plato prioritizes harmony and morals. he believes that justice is a spiritual substance that forms and maintains the unity of the social environment in society. the principle of harmony is achieved when the community makes arrangements for its community members. justice is achieved when everyone gets a job that suits him equally.2 meanwhile, aristotle considers justice as an idea that contains ambiguity. according to him, justice can be interpreted into two things, namely a comprehensive social virtue or a social virtue that has specificity. this comprehensive social virtue he called universal justice. meanwhile, the particular social virtue he calls particular justice.3 aristotle argued that universal justice was formed simultaneously with the process of law enforcement. while particular justice is related to propriety. he then divides particular justice into distributive justice and commutative justice. in the same context, john rawls—other legal scholars—provides ideas that influence the discourse on the value of justice. his important works related to justice include a theory of justice, political liberalism, and the law of 2 see cooper, john m. "the psychology of justice in plato." american philosophical quarterly 14, no. 2 (1977): 151-157; keyt, david. "plato on justice." in socratic, platonic and aristotelian studies: essays in honor of gerasimos santas, pp. 255-270. springer, dordrecht, 2011; hamedi, afifeh. "the concept of justice in greek philosophy (plato and aristotle)." mediterranean journal of social sciences 5, no. 27 p2 (2014): 1163-1163; udoudom, mfonobong david, and samuel akpan bassey. "plato and john rawls on social justice." researchers world 9, no. 3 (2018): 110114. 3 winthrop, delba. "aristotle and theories of justice." american political science review 72, no. 4 (1978): 1201-1216; von leyden, wolfgang. aristotle on equality and justice: his political argument. springer, 1985; beever, allan. "aristotle on equity, law, and justice." legal theory 10, no. 1 (2004): 33-50; duke, george. "aristotle as natural law theorist." in research handbook on natural law theory. (london: edward elgar publishing, 2019. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 iii available online at http://journal.unnes.ac.id/sju/index.php/jils peoples. rawls develops the principles of justice with the concept of the basic position and the veil of ignorance.4 the various meanings of justice and legal protection encourage journal of indonesian legal studies to raise the topic in this edition of "a discourse of justice and legal protection in domestic and global perspective". this edition presents ten articles from various domestic and foreign institutions on various studies on justice in a wider scope. the article written by hage & ningrum, corrective justice and its significance on the private law, offers a very interesting discourse and discussion about alternative justice in the field of civil law. this article compares several concepts of justice between aristotle and hans kelsen in affirming the meaning of justice in the settlement of civil disputes. another article, "dimensions of water resources regulation in philosophy of justice and human rights perspective" written by rideng, wijaya, and saripan provides a unique and more specific perspective on the concepts of justice and human rights in the regulation of water resources in indonesia. this article emphasizes that the right to clean water is one of the fundamental rights that is also included in the study of social justice. in fact, this research article also underlines that the capitalization and liberalization of ownership of water resources in indonesia by several companies is contrary to the principles of social justice and the values of pancasila. meanwhile, the article written by mangku, yuliartini, ruslan, monteiro, and surat on "the position of indegenous people in the culture and tourism developments: comparing indonesia and east timor tourism laws and policies", criticizes and analyzes how indegenous people's 4 rawls, john. "a theory of justice." in ethics, pp. 229-234. routledge, 2004; bloom, allan. "justice: john rawls vs. the tradition of political philosophy." american political science review 69, no. 2 (1975): 648-662; edor, edor j. "john rawls’s concept of justice as fairness." pinisi discretion review 4, no. 1 (2020): 179-190. http://journal.unnes.ac.id/sju/index.php/jils iv jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils rights should be accommodated in the development of tourism in bali and timor leste. according to them, the tendency to override the rights of indigenous peoples in tourism development and prioritize investment and economic value is something that violates the concept of justice itself. also various other articles published in this edition, dilemma of dual citizenship issues in indonesia: a legal and political perspective (salim, et.al.), restorative justice principles in law enforcement and democracy in indonesia (sukardi & purnama), protecting environment through criminal sanction aggravation (ali, et.al.), criminal liability of political parties from the perspective of anti-money laundering act (wangga, et.al.), promoting the good governance by advancing the role of parliamentarians and the term offices limitation (comparing nigeria and indonesia) (jaja & aditya), simple patent protection: a case of sarong tenun goyor indonesia and the comparison to malaysia utility innovation protection (rohmat, et.al.), and third-party risk in the availability payment: the palapa ring western package (nathaniel, et.al.) generally emphasizes the concept of justice from various legal and practical perspectives. in this edition, we are proud to inform you that journal of indonesian legal studies has officially been accepted into the scopus database—one of the largest databases of international reputable journals. we sincerely thank all parties for this achievement. of course, also to all the authors, the editorial team, faculty members, and all anonymous reviewers for all their invaluable help. finally, hopefully this edition will provide a different perspective on the development of discourse and deeper discourse on various justice practices in a wider scope. http://journal.unnes.ac.id/sju/index.php/jils attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? 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this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf2396c8b020b5 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf2395c8fc2085 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare jils (journal of indonesian legal studies) volume 5(1) 2020 125 available online at http://journal.unnes.ac.id/sju/index.php/jils review article final income tax: a classic contemporary concept to increase voluntary tax compliance among legal professions in indonesia david tan1 , lu sudirman2 1, 2 faculty of law, universitas internasional batam, indonesia  david.tan@uib.ac.id submitted: february 8, 2020 revised: may 8, 2020 accepted: may 11, 2020 abstract legal profession such as advocate, law consultant and civil law notary is a profession in law that plays a dominant role in providing legal services to the indonesian public. by providing the legal services, they are entitled to receive honorarium in return. empirical facts actually show that these legal professions’ tax compliance are still lacking. main questions in this research are the legal aspects related to income tax on honorariums received by legal professions in connection with the legal services they provide and the concept of reconstruction to the laws and regulations related to income tax on honorarium received by legal professions. this research will answer the legal aspects related to the laws on income tax on these legal professions’ honorarium in indonesia and the concept of reconstruction of the regulations related to income tax on these legal professions’ honorarium so that it may provide positive impetus to the legal profession’s tax compliance, and in turn contributes to the welfare of the nation. this normative juridical research approach is conducted using secondary data consisting of primary, secondary and tertiary legal materials. the aspects of the reconstruction are using the philosophical, constitutional and juridical paradigmatic studies with the utilitarianism theory by jeremy bentham, progressive legal theory by satjipto rahardjo and legal system theory by lawrence m. friedman as basis of analysis. the results of this study found that there is a concept of contemporary reconstruction to the laws and regulations related to the income tax on honorarium received by legal professionals. keywords: final income tax; tax compliance; legal profession nationally accredited journal (sinta 2) jils (journal of indonesian legal studies) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue 1, may 2020 issn (print) 2548-1584 issn (online) 2548-1592 http://journal.unnes.ac.id/sju/index.php/jils 126 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ……………………………………………………………. 125 table of contents ………………………………...………….. 126 introduction ……………………………………………………. 127 i. legitimacy and jurisdiction of tax collection by the state through the government ……………………………………………...…... 137 ii. positive laws related to income tax on legal professionals’ honorarium …………………..……… 140 a. empirical implementation of withholding tax deduction, payment and report of income tax on legal professionals’ honorarium ……………...…………………………………….. 141 b. constraints and consequences of implementing prevailing tax regulations related to legal professionals’ income tax (a classical-contemporary point of view) ……………………… 146 c. are the tax regulations related to the income tax on legal professionals’ honorarium is still relevant and feasible? ….. 149 iii. efforts to reconstruct the laws related to income tax on legal professionals’ honorarium ……………….………………………………... 153 a. legal political paradigm in the formation of laws and reconstruction of laws and regulations ..……………………. 153 b. contemporary concept of reconstruction of the regulations relating to income tax of legal professions’ honorarium ..... 156 summary of major findings ……………………………… 161 conclusion ………………………………………………..……… 162 recommendations …………………………………………...... 163 acknowledgments ……………………………....…………… 164 references ………………………………………………………… 165 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. how to cite: tan, d., & sudirman, l. (2020). final income tax: a classic contemporary concept to increase voluntary tax compliance among legal profession in indonesia. jils (journal of indonesian legal studies) 5(1), 125-170. doi: https://doi.org/10.15294/jils.v5i1.37308. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.15294/jils.v5i1.37308 jils (journal of indonesian legal studies) volume 5(1) 2020 127 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction indonesia is a state of law (rechtsstaat or the rule of law) which upholds the supremacy of law. even the presence of regulations in indonesia is inseparable from the influence of european continental version of rechtsstaat.1 the provision of this rule of law is stipulated in the provision of article 1 paragraph (3) of the republic of indonesia’s constitution of 1945 which states that: “the state of indonesia is the state of law”. the ideals of indonesia as the state of law (rechtsstaat) is based on pancasila and the republic of indonesia’s constitution of 1945 is the philosophical and constitutional basis of the state which mandates that the government must guarantee legal certainty, legal order and legal protection for each of its citizens. one of the tangible manifestations of the realization of guaranteed legal certainty, legal order and legal protection for each of its citizens are the needs for legal assistance, legal counsel, and authentic deed as a perfect form of proof/evidence in law, and so on. those mentioned above are the main task of advocate and civil law notary as legal profession. advocate giving out legal advices, legal assistance and legal counselling for those in need of such services, so to uphold their rights as guaranteed by the law. advocate as a free and independent profession is also a law enforcement institution by the virtue of article 5 paragraph (1) of the law of the republic of indonesia number 18 of 2003 concerning advocate (which hereinafter will be referred to as “uu advokat”). in civil law notary’s part, legal order and legal certainty is the driving factor for the need for an authentic deed as a written proof of every action, agreement, determination and legal event made before or by an authorized public official. this authentic deed constitutes a small part of the law of the republic of indonesia number 30 of 2004 concerning notary position, as amended by the law of the republic of indonesia number 2 of 2014 (in indonesian also known as undang-undang jabatan notaris or uujn, which hereinafter will be referred to as “uujn”). the philosophical and constitutional basis as mentioned above that gave birth to the position of legal profession such as advocate as law 1 willy riawan tjandra, dinamika keadilan dan kepastian hukum dalam peradilan tata usaha negara, 4 j. mimb. huk. 75–88 (2011). http://journal.unnes.ac.id/sju/index.php/jils 128 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils enforcement and civil law notary as a public official (openbaar ambtenaar) authorized to make authentic deeds and other authorized deed based on the virtue of law, in the place where the said public official has jurisdiction to do so. this authority also underlies the nature of the civil law notary’s position as a representative of the state in civil matters.2 although they are generally not government employees, they are representatives of the public faith (publica fides).3 talking about honorarium in the scope of legal professions in indonesia, whether advocate, civil law notary, legal consultant and other legal professions is not the main focus. for instance, honorarium in the scope of notaryism is not the main thing because one of the general obligations of the spirit of the notary code of ethics is to carry out his position with trustworthy, honesty and carefully, independent and not influenced by personal gain considerations.4 even so does not mean that the honorarium is not important at all. it is precisely stated that notary who receives an honorarium has taxation obligations as well. as can be seen in the provision of article 36 paragraph (1) uujn is the legal basis that grants the right to civil law notary to receive honorarium in return for legal services rendered in accordance with its authority. likewise, advocates who are entitled to honorarium are also stipulated in the provision of article 21 paragraph (1) of the uu advokat. on the other hand, the provisions of the article 4 paragraph (1) of the law of the republic of indonesia number 7 of 1983 concerning income tax which, has been amended several times, recently with the law of the republic of indonesia number 36 of 2008 concerning the fourth amendment of the law of the republic of indonesia number 7 of 1983 concerning income tax (which hereinafter will be referred to as “income tax law”), regulates and classifies honorarium received by legal professions (advocate, legal consultant, civil law notary, curator, etc.) as income classes from free 2 bachrudin, jabatan notaris di indonesia dalam jerat liberalisasi, ii j. pembaharuan huk. 185–196 (2015). 3 paavo monkkonen, are civil-law notaries rent-seeking monopolists or essential market intermediaries? endogenous development of a property rights institution in mexico, 43 j. peasant stud. 1224–1248 (2016), http://dx.doi.org/10.1080/03066150.2016.1216983. 4 herlien budiono, kumpulan tulisan hukum perdata di bidang kenotariatan: buku kedua (2013). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 129 available online at http://journal.unnes.ac.id/sju/index.php/jils employment (golongan penghasilan dari pekerjaan bebas), so that by virtue of law it is also an object of income tax based on the income tax law. like all other positions or professions that receive income, legal professions receiving honorarium are also not exempted from being taxed. the notion to tax legal profession was introduced long ago, at least in the town of perth, recorded the birth of the attorney tax introduced by the stamp duty act 1785. the tax was immediately controversial in england. petitions from attorneys across england were presented to parliament in 1786 and 1787 seeking changes to the legislation.5 despite tax as the nation’s major contributor for state’s revenue,6 previous research shows that despite the government's efforts to boost the amount of state revenue through taxes, indonesia's tax ratio remains at a stagnant level, which is between approximately 10% to 12% year-on-year. tax ratio of that amount is considered as relatively low. ideally, the tax ratio can reach 15% to 17%.7 even though the tax ratio is maintained at a stagnant level it means there is no optimization, there is still the potential for tax revenue that can be extracted and there is still the potential for tax revenue that has not been touched.8 based on the researcher’s investigation, the level of tax compliance of the legal professions such as advocates, civil law notary and curator is still very low when faced with taxation obligation, for example the reporting and paying of income tax upon receiving honorarium. as explained by the minister of finance of the republic of indonesia, sri mulyani at the tax amnesty dissemination on 23rd november 2016, where she claimed to be concerned about seeing the tax data from advocates, notaries and curators. the reason is that none of these legal professions has a tax compliance rate above 50%. civil law notary profession based on the data owned by the directorate general of taxes of the republic of indonesia estimates approximately 430.000 taxpayers from civil law notary. the taxpayer 5 john finlay, ‘tax the attornies!’ stamp duty and the scottish legal profession in the eighteenth century , 34 j. scottish hist. stud. 141–166 (2014). 6 husen abdul ghoni, pengaruh motivasi dan pengetahuan wajib pajak terhadap kepatuhan wajib pajak daerah, 1 j. akunt. akunesa 1–21 (2012), https://jurnalmahasiswa.unesa.ac.id/index.php/jurnalakuntansi/article/view/296. 7 lintje kalangi, pengaruh tarif pajak dan probabilitas audit terhadap kepatuhan pajak penghasilan (studi eksperimen laboratorium), 5 j. ris. akunt. dan audit. ‘goodwill’ 20–29 (2014). 8 sihar tambun, anteseden kepatuhan wajib pajak orang pribadi dan moderasi sosialisasi perpajakan, 1 media akunt. perpajak. 11–25 (2016), http://journal.uta45jakarta.ac.id/index.php/map/article/view/163. http://journal.unnes.ac.id/sju/index.php/jils 130 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils identification number (indonesian: nomor pokok wajib pajak or abbreviated npwp) of the civil law notary profession is recorded as many as 14.686, while the taxpayer identification number identified is only 11.314 civil law notaries. sri mulyani again explained that seeing from the past five years, indications of tax reports by civil law notary profession were only around 35%. but yearly data trend is decreasing from 39% to 30%. advocates based on the data from directorate general of taxes of the republic of indonesia also recorded a total of 16.879 taxpayers with a taxpayer identification number (npwp) identified as not reaching 10%, with only 1.976 taxpayer identification number (npwp). the directorate general of taxes of the republic of indonesia also recorded 533 curators, but only 277 taxpayer identification number (npwp) were identified. the profession of curators has a better tax compliance rate of 45%, but none of these three legal professions has tax compliance figure that exceeds 50%.9 the laws and regulations regarding the legal profession’s income tax currently already exist. but in practice, the nature of the tax arrangements for income received by these legal professions in the form of honorarium can still be improved to better. legal professions by virtue of law is classified as income classes from free employment (golongan penghasilan dari pekerjaan bebas) which based on income tax law concretely calculates the amount of tax payable based on 2 main methods, namely they who organizes bookkeeping (menyelenggarakan pembukuan) and who organizes records using the income tax calculation norm (menyelenggarakan pencatatan dengan menggunakan norma perhitungan pajak penghasilan). this provision is specifically regulated in regulation of the director general of tax number per-17/pj/2015 concerning net income calculation norms. the majority of legal professions if comply, will use the second method, which is to record using the income tax calculation norm. the second alternative was chosen before the first alternative because in the first alternative, these legal professionals are obliged to make and hold a bookkeeping and make a comprehensive and accountable financial statement regarding the implementation of his/her activities as legal professionals. the first alternative is also required for legal professionals 9 hukumonline, memprihatinkan!! kepatuhan pajak advokat, notaris dan kurator rendah, hukumonline , https://www.hukumonline.com/berita/baca/lt5836d2fdc73c1/memprihatinkan-kepatuhanpajak-advokat--notaris--dan-kurator-rendah/ (last visited aug 28, 2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 131 available online at http://journal.unnes.ac.id/sju/index.php/jils who are a taxpayer with a gross circulation in one year equals to rp4.800.000.000,00 or more. in addition to the above reasons, the legal profession tends to choose to record using the income tax calculation norms because the tax basis (indonesian: dasar pengenaan pajak or dpp) is calculated at 50% of the gross income they receives (although they cannot charge any operational costs and other costs arising). as for the current empirical practice, tax deduction, payments have been made according to the income tax law. where every business entity that deducts income tax from the honorarium paid to the legal professions often does not submit proof of withholding tax deduction to the respective legal profession. as a result, each legal professional must return to remind and ask for the original proof of withholding tax deduction. if they fail to request the proof of the withholding tax deduction, then the withholding tax deduction already made cannot be recognized and the legal professionals must pay on their own, their withholding income tax as a consequence of our income tax legal system that adheres to the self-assessment system. the consequence is multiple tax payment made on the same income object. in the income tax law, there is also no regulation regarding income tax deduction on honorariums paid by individuals (naturlijk persoon) that uses the legal services from the legal profession. based on our income tax law, individuals (naturlijk persoon) who are the recipients of legal services that pay honorariums to the notary must deduct taxes and note it in their own records so that at the end of the tax year the deduction is reported to the directorate general of tax through the reporting of annual tax report (indonesian: surat pemberitahuan tahunan pajak or spt). of course this cannot be effectively practiced given the understanding of tax knowledge of every person is different. as a consequence, the legal profession must again pay his own withholding income tax as our income tax legal system adopts a selfassessment system. again this condition illustrates the double tax payments made towards the same income object. every taxpayer including legal profession has the right to file the double-paid tax as an overpayment and hence as a tax credit, but this must be proven by original proof of withholding tax deduction and must firstly carried out a tax audit. this condition is felt by researcher that can be improved in order to be even better, one thing and another considering the taxation principles proposed by adam smith are among others: equality, http://journal.unnes.ac.id/sju/index.php/jils 132 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils certainty, convenience of payment and economic of collection.10 users of legal profession’s services, both legal entities and individuals, must deduct tax on the honorarium paid to every legal professions, this is in accordance with the mandate of article 21 paragraph (1) letter d of the income tax law. however, in its pragmatic implementation, not everyone knows and understands the imposition of tax tariffs applied to these legal professions, because the determination of the tax rate imposed by to the legal profession by law is progressive based tariff. calculated on the amount of gross income it has received (this of course only the legal professionals himself knows so far where their income have far progressed). with regard to the above conditions, the legal professionals at the end of the every tax year must recapitulate and pay his income tax in accordance with our income tax law system which adopts a self-assessment system. in addition to the issues commonly faced practice as mentioned above, every legal profession are also required by article 25 of the income tax law to pay monthly income tax instalments. the amount of tax instalments that must be paid regularly each month in the current tax year is the amount of income tax (indonesian: pajak penghasilan or pph) owed according to the previous year's annual tax report (spt). in short, the amount of income tax paid in the last year becomes a reference to the amount of tax that must be paid in the current year each month in instalments. here the income tax law makes a projection of the value of income tax to be paid in instalments in instalments using performance in the previous tax year. the problem faced in real terms is for example the number of deeds made by a civil law notary, of course, always different (inconsistent) every month. the civil law notary must again provide funds every month to be paid as income tax instalments for the current year regardless of the number of deeds he made and how many honorariums he has received. the complexity of tax calculation, deduction, payment and reporting is what the researcher feel can result in a decrease in tax compliance by these legal professions towards tax regulations. as a general official appointed by the state, of course this will have a negative impact on the legal professions institution’s image. moreover, civil law notary appointed by the state and advocate as law enforcement institution, both are from graduates of law 10 pranoto & ayub torry satriyo kusumo, reformasi birokrasi perpajakan sebagai usaha peningkatan pendapatan negara dari sektor pajak, 5 j. yust. 395–414 (2016); magdalena jarczok-guzy, the principles of tax law equality in the context of direct taxation, 30 j. econ. manag. 70–84 (2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 133 available online at http://journal.unnes.ac.id/sju/index.php/jils should give a good example of obedience and compliance with regulations and laws, including tax regulations. instead, they show a high level of noncompliance. referring to the description as written above, this research will mainly answer 2 problems namely how are the legal aspects related to income tax on honorariums received by legal professions in connection with the legal services they provide and the concept of reconstruction such as what can be done against regulations related to income tax on honorarium received by legal professions. the subject matter raised by the researcher is also substantively feasible to be examined because it is original. as the researcher has an obligation to show that the research conducted offers new perspectives, ideas or solutions to a legal problem that previously existed.11 from the researcher's investigations, no research has ever been conducted that seeks to reconstruct regulations related to income tax received by legal profession in connection with the legal profession’s honorarium received. therefore this research is a pioneer research, meaning that academically and scientifically, this research has a novelty element so that it becomes a guarantee that this research is an original work and can be justified. the topic raised also fulfils the requirement of non-obviousness because the topic raised is something that is not too clear, not too easy and general, so that it cannot be known without prior research. the final objective of this research is expected to be able to answer the legal aspects related to income tax on legal profession’s honorarium and the concept of reconstruction such as what can be done to regulations related to income tax on legal profession’s honorarium, one and the other so that it can provide a positive impetus to the tax compliance of legal profession in indonesia. in addition, this research is expected to produce recommendations for a more applicable contemporary reconstruction concept, in the form of an arrangement regarding income tax on honorarium received by legal profession in accordance with his/her service in legal sector. this research is expected to contribute to the reconstruction of tax regulations on income received by legal profession so that they can better accommodate the needs of legal profession in indonesia. 11 andri gunawan wibisana, menulis di jurnal hukum: gagasan, struktur dan gaya, 49 j. huk. pembang. 471–496 (2019). http://journal.unnes.ac.id/sju/index.php/jils 134 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils this research is expected to benefit theoretically for the development of legal theories that are being used, adding to the treasury of knowledge, especially in the field of taxation law. practically this research is expected to be beneficial for the development of tax laws and regulations in indonesia (ius constitutum into ius constituendum), for executive branch that carry out statutory provisions and for legal professions and legal profession’s organizations that are directly related to the topics rose in this study. this study uses a paradigmatic study of legal politics in the formation of legislation from a philosophical, constitutional and juridical perspective. the problem will then also be analysed based on the use of legal theory, namely utilitarianism theory by jeremy bentham, progressive legal theory by satjipto rahardjo and legal systems theory by lawrence m. friedman as the basis for analysis. utilitarianism12 arose in the west in the discipline of western legal philosophy. the originator was jeremy bentham. according to this theory, the benchmark of utilitarianism is happiness, hence the adage “the greatest happiness for the greatest number of people”.13 therefore, when a person is able to produce more pleasure and suppress sadness/plight, it means he will get happier. the standard of achieving happiness, therefore, is individual in nature (individualism).14 jeremy bentham’s (1789) utilitarianism is thought to be the first to systematically examine the “economic analysis of law”, it is how people act towards legal incentives and evaluate their results according to the social welfare measures.15 according to the utilitarianism theory a person can be ignored and it is pursued as much satisfaction as possible, but it was also asked that to a certain people to sacrifice themselves for the happiness of the greater.16 12 utilitarianism, as originally formulated by jeremy bentham and later qualified and modified by john stuart mill and henry sidgwick, was, the inspirator for great legal and social reforms, as well as the principal theoretical basis for progressive social thinking. h. l.a. hart, the new challenge to legal positivism (1979), 36 oxf. j. leg. stud. 459–475 (2016). 13 khairul fahmi, menelusuri konsep keadilan pemilihan umum menurut uud 1945, 4 j. cita huk. 167–186 (2016); yong ohoitimur, tujuh teori etika tentang tujuan hukum, 1 stud. philos. theol. 90–105 (2001); ni made dwi kristiani, kejahatan kekerasan seksual (perkosaan) ditinjau dari perspektif kriminologi, 7 j. magister huk. udayana 371–382 (2014). 14 ahmad zayyaduz zabidi, paradigma utilitarianistik dalam istinbâth hukum islâm, 3 j. huk. dan pranata sos. 368–382 (2008). 15 ady irawan, analisis ekonomi terhadap hukum dalam kebijakan penegakan hukum pidana di indonesia, 7 j. pendidik. ips 29–36 (2017), http://ejournal.tsb.ac.id/index.php/jpi/article/view/80. 16 this means that the greater satisfaction for a group of people is sufficient compensation enough for the reduced satisfaction of another group. it is clear that in this way humans are treated as a http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 135 available online at http://journal.unnes.ac.id/sju/index.php/jils utilitarianism theory is a theory that determines the right or wrong of something based on happiness. in simple terms it can be understood that utilitarianism is a theory that considers everything based on the aspect of benefits that is presented behind a certain action (series of causes and effects).17 the utilitarianism theory can actually also be included in legal positivism, bearing in mind that this theory has finally come to the conclusion that the goal of law is to create public order, as well as to provide maximum benefits to the largest number of people. this means that the law is also a reflection of the authority's command, not a mere reflection of the ratio.18 the stability of a utilitarianism conception of justice depends on the willingness of individuals to make potentially unlimited sacrifices for one another. this apparently requires that the members of a society form strong bonds even with those members with whom they have no personal contact or even direct knowledge.19 prof. satjipto rahardjo in his progressive legal theory views that the law is intended to strengthen and secure the implementation of development and its results. the law must be able to provide support and direction to efforts for development in order to achieve equitable prosperity. ultimately the law must be able to create a climate and environment that fosters creativity and community participation in development and supports healthy and dynamic national stability.20 even in his perspective, satjipto rahardjo views that as an object of knowledge, the laws that is codified in the law is not something sacred to be tested for its persistence and value.21 means; economic principles take precedence over the needs of the human. rawls argues that in a society governed according to the principles of utility people will lose self-esteem, and that service for mutual development will disappear. rawls also believes that this theory is actually harder than what is considered normal by the people. it may be that people are asked to sacrifice in the public interest, but it cannot be justified that this sacrifice was first requested from people who are already disadvantaged in today's society. m. yazid fathoni, konsep keadilan dalam pengelolaan dan pemanfaatan sumber daya alam menurut undang-undang pokok agraria tahun 1960, 1 j. ius kaji. huk. dan keadilan 44–59 (2013). 17 iqrak sulhin, filsafat (sistem) pemasyarakatan, 7 j. kriminologi indones. 134–150 (2010), http://www.ijil.ui.ac.id/index.php/jki/article/view/1097; mas ahmad yani, pengendalian sosial kejahatan: suatu tinjauan terhadap masalah penghukuman dalam perspektif sosiologi, 3 j. cita huk. 77–90 (2015). 18 yogi prasetyo, legal truth (menakar kebenaran hukum), 1 leg. standing j. ilmu huk. 1–21 (2017). 19 vladislav valentinov, the rawlsian critique of utilitarianism: a luhmannian interpretation, 142 j. bus. ethics 25–35 (2017). 20 satjipto rahardjo, pendidikan hukum sebagai pendidikan manusia (2009). 21 muhammad rustamaji, menakar pengawasan pemberian bantuan hukum dalam pandangan richard a posner, 2 j. rechts vinding 95–106 (2013), https://rechtsvinding.bphn.go.id/ejournal/index.php/jrv/article/view/84. http://journal.unnes.ac.id/sju/index.php/jils 136 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils the process to find the best law must be carried out considering the human factor in the law has been ignored. the concept of progressive law that emphasizes the never-ending process of searching for the truth, is an opportunity to strengthen the human factor in law.22 the legal system theory by lawrence m. friedman will be the basis of researcher's analysis in answering the second problem rose, namely how the concept of reconstruction can be carried out on regulations related to income tax on honorarium received by legal profession. to answer this problem, it will be assessed based on 3 elements/instruments, namely legal substance, legal structure and legal culture. these elements support the operation of the legal system in a country. where in social reality, the existence of the legal system contained in society will experience changes as a result of the influence of what is called modernization or globalization. these elements according to lawrence m. friedman will apply as a determining factor, whether a legal system can work well or not. soerjono soekanto said that these three components were factors that could not be ignored because if ignored would lead to not achieving the expected result of law enforcement.23 for this research and study, the authors will also emphasize on the idea of legal culture. when lawrence friedman introduced the idea of legal culture into sociology of law and legal theory, it was intended to serve as a “term of art”, part of his effort to show that social pressures and needs shape legal change more than autonomous developments within legal tradition itself.24 to answer the issues raised in this study, researcher will use the research specifications/type of research in the form of normative juridical legal research. this research was conducted by merely examining library materials and secondary data. according to abdulkadir muhammad, normative law research uses normative legal case studies in the form of legal behaviour products, such as reviewing draft laws. the main point of study is the law which is conceptualized as a norm or rule that applies in society and becomes a reference for behaviour towards people. so that normative legal 22 sulaiman & derita prapti rahayu, pembangunan hukum indonesia dalam konsep hukum progresif, 2 hermeneut. j. ilmu huk. 128–139 (2018). 23 secsio jimec nainggolan et al., analisis yuridis penentuan kedudukan saksi pelaku sebagai justice collaborators dalam tindak pidana narkotika di pengadilan negeri pematang siantar (studi putusan no: 231/pid.sus/2015/pn), 5 usu law j. 108–117 (2017). 24 david nelken, thinking about legal culture, 1 asian j. law soc. 255–274 (2014). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 137 available online at http://journal.unnes.ac.id/sju/index.php/jils research focuses on an inventory of positive law, principles and doctrine of law, legal discovery in concreto cases, systematic law, the extent of legal synchronization, comparative law and legal history.25 in this legal research, secondary materials include primary, secondary and tertiary legal materials. the secondary data above was obtained by the method of collecting data through library research. literature study is carried out to find conceptions, theories and opinions as well as findings which mainly discuss the topics raised. literature study is also carried out on the relevant laws and regulations. the approaches used in this research are the statute approach and philosophical approach. statute approach is carried out by reviewing all laws and regulations relating to the research conducted. whilst the philosophical approach is carried out by examining in depth the background of a rule or concept of law by basing the discussion on the theory and philosophy of law that revolves around issues of nature, values, methods and objectives of a particular law and/or regulation.26 the data that has been collected is then analysed using qualitative juridical analysis methods. i. legitimacy and jurisdiction of tax collection by the state through the government prof. dr. rochmat soemitro, s.h. define tax as a public contribution to the state treasury based on the law (which can be forced) by not getting a counter-service (kontra prestasi), which can be directly shown and used to pay public expenses. prof. dr. rochmat soemitro, s.h. explain that the element 'can be forced' means that if the tax is not paid, then the tax can be collected by using violence such as issuing forced letters and confiscating even by taking hostage, whereas the payment of the tax will not always be followed by certain shown reciprocal services, as does retribution.27 tax has a very close relationship with human rights (indonesian: hak asasi manusia or abbreviated ham). researchers take the example of the constitution of 25 abdulkadir muhammad, hukum dan penelitian hukum (2004). 26 jawahir thontowi, pengembangan ilmu hukum berbasis religiuos science: dekonstruksi filsosofis pemikiran hukum positivistik, 6 pandecta res. law j. (2011). 27 wirawan b. ilyas & richard burton, hukum pajak (2001). http://journal.unnes.ac.id/sju/index.php/jils 138 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils the netherlands. in dutch constitutional law, the notion of basic/fundamental rights (grondrechten) is generally used to refer to basic rights and freedoms (fundamental rights and liberties). here, classic fundamental rights are conceptually differentiated into social rights and economic rights. the sources of these basic rights are the dutch constitution, international conventions on human rights and european union law.28 one of the biggest sources of state revenue in the context of national income comes from the tax sector. as one source of income, tax has an important role in the development process in indonesia. tax as one of the main capital to realize the independence of a nation in terms of financing development by exploring domestic resources. to realize the independence of this funding requires public participation in national development funds through its obligation to pay taxes as a source of state revenue. it is inevitable that tax revenue is one of the biggest revenues in the state revenue budget. tax revenue reaches up to 77% of all national income. this condition will certainly have an impact on the financial system and national economic system in order to achieve a common goal, namely social welfare.29 taxes are even more important for the survival of this country because its role/influence is very large on state revenue, which is more than the overall state revenue from other sources, such as natural resources, state owned enterprises profit share (indonesian: badan usaha milik negara or abbreviated bumn), other non-tax state revenue (indonesian: penerimaan negara bukan pajak or abbreviated pnbp) and revenue from public service agencies (indonesian: badan layanan umum or abbreviated blu).30 similar to the definition of taxes and ideas in the constitution of the netherlands, the act of collecting taxes by the state through a legitimate government is in principle an act of taking what is a person's right by force. rights in this case are human rights of every human being which are basic economic rights. therefore, it is specifically regulated in the republic of 28 hans gribnau, legislative instrumentalism vs. legal principles in tax law, 16 coventry law j. 89–109 (2013); hans gribnau, equality, legal certainty and tax legislation in the netherlands fundamental legal principles as checks on legislative power : a case study, 9 utr. law rev. 52–74 (2013). 29 zainal muttaqin, dewi kania sugiharti & i tajudin, law enforcement on taxation through non litigation mechanism (an alternative), 27 j. mimb. huk. 374–387 (2015). 30 harsanto nursadi, tindakan hukum administrasi (negara) perpajakan yang dapat berakibat pada tindakan pidana, 48 j. huk. pembang. 110–136 (2018). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 139 available online at http://journal.unnes.ac.id/sju/index.php/jils indonesia’s constitution, specifically in the provisions of article 23a of the republic of indonesia’s constitution of 1945 which reads: "taxes and other levies that are coercive for the purposes of the country are regulated by law". the provisions of the constitution outline an obligation from the state to regulate in advance the legal instruments in the form of laws before tax collection. the purpose of promulgation into the law is because through the law, the participation of all people in the promulgation of tax laws can be guaranteed, one another to create an understanding and awareness of tax law for all indonesian people. that the tax must be regulated by law reflects that the tax collection is determined jointly by the people through its representatives in the parliament (indonesian: dewan perwakilan rakyat or abbreviated dpr), including the determination of the tax rate. this includes the provision that upholds the rights of citizens and places tax obligations as a state obligation which is the participation of the community in state financing and national development.31 in order for the tax collection to not injure the public's sense of justice, then a legal coercive effort is needed. legality in this case is to rely on tax collection through law. without the law, tax collection is not binding on society and is illegal.32 the tax regulation in the law is not only to provide legitimacy in terms of collection and jurisdiction, but also to ensure that tax collection is carried out in accordance with the principles of good taxation. adam smith is widely known as one of the most important writers of the principles of good taxation. in the early 18th century, smith formulated four principles or canons, namely: equality, certainty, convenience and the economy of taxation. these principles are based on liberal economic thought which is still relevant today. adam smith replaced the concept of equity with the concept of equality with the view of the practical application of this principle; adam smith combines two separate factors into a factor of "benefit" and "ability to pay". john stuart mill is another economist who discusses the principle of equality in tax law. according to him, the principle of equal treatment of taxpayers means "the same financial sacrifice or the same loss in property". the second principle of adam smith's taxation is that 31 fuad bawazier, reformasi pajak di indonesia, 8 j. legis. indones. 1–28 (2011). 32 dwi sulastyawati, hukum pajak dan implementasinya bagi kesejahteraan rakyat, 1 salam j. sos. dan budaya syar-i 119–128 (2014). http://journal.unnes.ac.id/sju/index.php/jils 140 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils the tax must be guaranteed and not arbitrary (tax ought to be certain and not arbitrary).33 moving on from two main principles of good taxation by adam smith, the law aims to guarantee both taxation principles to be implemented properly. the rule of law aims to protect against arbitrary interference. therefore the principle of the rule of law is to prevent the application of tax solely as a political instrument of the government and to keep it fully within the scope of legislative freedom (the principles of a state under the rule of law within the sphere of legislative freedom) 34. therefore the importance of the substance of tax regulation, specifically regarding matters of taxation must be regulated in the legislation class/hierarchy of law. this was certainly realized by the indonesian founding fathers at the time of the formulation of the republic of indonesia’s constitution of 1945. ii. positive laws related to income tax on legal professionals’ honorarium positive law related to tax in indonesia has undergone many changes. tax reform in indonesia began in 1983, with the introduction of the principle of self-assessment in calculating income tax. post 1997 or in the reformation order (orde reformasi), changes to changes towards taxation arrangements continue to occur even though it feels nuanced "undirected changes" because it starts to lose direction and clear goals. the latest post 1997 changes include law of the republic of indonesia number 36 of 2008 concerning the fourth amendment to law of the republic of indonesia number 7 of 1983 concerning income tax, law number 16 of 2009 concerning implementation of government regulations in lieu of laws number 5 of 2008 concerning the fourth amendment of law number 6 of 1983 concerning general provisions and procedures for taxation into law, act number 42 of 2009 concerning the third amendment to law number 6 of 1983 concerning value added tax on goods and services and sales tax on luxury goods, and the transfer of responsibility for collection of bphtb (land and building acquisition fees) from the central government to local governments since 2011. specifically for income tax (pph) is imposed with a 33 gribnau, supra note 28. 34 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 141 available online at http://journal.unnes.ac.id/sju/index.php/jils self-assessment system in calculating income tax by charging more progressive rates, as a sharpening of the principle of simplicity and the principle of legal certainty.35 legal changes with the terminology of tax reform in indonesia increasingly reflect the reality that there is a holistic commitment to improvement in the taxation sector. specifically, the regulations governing taxation on honorariums received by legal professions in connection with the legal services they provide that have been legally regulated in the provisions of article 4 paragraph (1) of the income tax law. the provisions of article 4 paragraph (1) of the income tax law regulate and classify honorarium received by legal professions as income classes from free employment (pekerjaan bebas), so that by law the honorarium received by legal professions is subject to income tax based on the income tax law. the position of legal professions according to the explanation of the provisions of article 4 paragraph (1) letter a of the income tax law is also included in the types of work classified as free employment. free employment means that the work carried out by individuals who have special expertise as an effort to earn income that is not bound by a work relationship.36 a. empirical implementation of withholding tax deduction, payment and report of income tax on legal professionals’ honorarium in this particular section, the researcher will emphasize more on one legal profession, namely civil law notary. mainly because in all other legal profession, civil law notary is the only one that has a unique mix of thick public and private sector. in some countries, the civil law notary is carried out as a "free employment" (vrij beroep), while in other countries it is a nonsalary position (staatsambt or onbezoldigd). in fact there are also (in some countries) as government officials who are given an honorarium (gehonoreerd staatsambt).37 the position of notary is included in the category of public 35 bawazier, supra note 31. 36 direktorat jenderal pajak, pengertian pekerjaan bebas (2016), http://www.pajak.go.id/sites/default/files/2019-05/pl-15 pekerjaan bebas.ppsx (last visited sep 4, 2019). 37 komar andasasmita, notaris i: peraturan jabatan, kode etik dan asosiasi notaris/notariat (1991). http://journal.unnes.ac.id/sju/index.php/jils 142 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils official (openbaar ambtenaar) in the field of law which is also an extension of the government. public officials in this case are state organs equipped with general powers, authorized to carry out a portion of state power to produce written and authentic evidence in the field of civil law.38 therefore, civil law notaries are public officials and not public servants. civil law notary was appointed in his position because of the law. civil law notary is a public official that also acts like a "businessman". the civil law notary position can be seen as an anachronism, on the one hand it carries out a portion of state power and on the other hand works for itself by carrying out a "free" profession.39 this is one of the reasons why civil law notaries can receive an honorarium by law. civil law notaries are professionals who provide legal services. a civil law notary does not get a salary/income from the government, but she/he has the right to withdraw fees for services rendered. civil law notary services are intangible even though a notary in providing his services produces a deed. the determination of the honorarium of a civil law notary public is therefore not certain. can only be limited by statutory provisions for the sake of regularity and to avoid arbitrariness. the civil law notary honorarium is regulated in article 36 uujn. however, the limitation in article 37 uujn shows that the position of a notary may not merely be seen as a livelihood profession that prioritizes money and income, but also has the social function of providing assistance to people who cannot afford it.40 the position of civil law notary that based on the provisions of article 4 paragraph (1) letter a of the income tax law falls into the types of work that are classified as free employment obliged to do bookkeeping, one and the other in accordance with the provisions of article 28 paragraph (1) of law number 6 of 1983 as has been amended by law number 16 of 2000 concerning general provisions and tax procedures (hereinafter referred to as "uu kup"). but more specifically (lex specialis) regulated further in the regulation of the director general of tax number: per-17/pj/2015 concerning norms of calculation of net income, especially in the provisions of article 1 paragraph (1), paragraph (2) and paragraph ( 3) provide further details on the categories of individual taxpayers such as whether to keep 38 herlien budiono, kumpulan tulisan hukum perdata di bidang kenotariatan: buku ketiga (2015). 39 id. 40 freddy harris & leny helena, notaris indonesia (2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 143 available online at http://journal.unnes.ac.id/sju/index.php/jils bookkeeping or records. the provisions of article 1 paragraph (1) of the regulation of the director general of taxes requires that individual taxpayers who carry out free employment whose gross circulation in one year exceeds rp4,800,000,000.00 is required to maintain bookkeeping. for taxpayers who do not qualify in the provisions of article 1 paragraph (1), they are free to choose not to keep books, but are obliged to keep records by notifying the use of such records to the director general of taxes. therefore, based on the provisions of the income tax law, uu kup and regulation of the director general of tax number: per-17/pj/2015 concerning norms of calculation of net income, in general the civil law notary and other legal profession will conduct 2 models of withholding tax deduction, payment and reporting of income tax on the honorarium it receives, i.e., with the following model: a. legal profession that organize bookkeeping (menyelenggarakan pembukuan) the legal profession who organizes bookkeeping is a legal professional who, in carrying out his duties and authority, has a gross circulation in one year exceeding rp4,800,000,000.00 or less than it, but chooses to keep bookkeeping. the obligation to maintain bookkeeping in this case is the same as the corporate taxpayer carrying out business activities. bookkeeping based on the provisions of article 1 number 29 of the uu kup is a process of recording that is carried out regularly to collect financial data and information which includes assets, liabilities, capital, income and costs, as well as the total acquisition and delivery price of goods or services, where data and information the finance is closed by preparing financial statements in the form of a balance sheet and income statement for a certain tax year period. in this model, the fees paid to the legal profession by the service user must be deducted by the service end user first and then the rest of the amount is paid to the legal profession. this is in accordance with the provisions of article 21 paragraph (1) letter d of the income tax law that requires users of legal profession’s services, both legal entity and individuals to make withholding tax deductions for honorariums paid to the legal profession. but in practice the withholding tax deduction that deducts the legal profession tax from the honorarium to be paid is only in the form of http://journal.unnes.ac.id/sju/index.php/jils 144 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils corporate taxpayers, one and the other because the corporate taxpayers have comprehensive bookkeeping, knowledgeable staff and adequate infrastructure. in addition, in essence the taxpayer entity will always keep bookkeeping because it is required by law, so there will be no difficulty in reporting any taxes withheld at the time of reporting the annual tax report (spt). tax deduction by individual taxpayers is very minimal in practice because most of the individual taxpayers do not understand at all the applicable taxation provisions, individual taxpayers who tend to pay in cash/directly in full the honorarium billed by legal professionals to him/her. individual taxpayers also will not carry out all tax deduction administration until reporting of tax deduction activities in the current tax year at the time of reporting their annual tax report. as a result, it is the legal profession who then self-pays the owed income tax that must be paid as a consequence of the self-assessment system. not infrequently even the legal profession then does not follow up on his tax obligations in the form of paying the tax payments that he/she owed. at the end of the taxation period, the legal professional must independently (as a consequence of the self-assessment system) calculate his taxation obligation and liabilities within the 1 tax year as evidenced in the books made during the current tax year. in the case of bookkeeping, they may calculate all burdens that have been legally and really issued in connection with the implementation of his duties and authority as legal profession. the results of calculations obtained from bookkeeping held by a notary after deducting expenses and expenses constitute net income that must be reduced by non-taxable income (indonesian: penghasilan tidak kena pajak or abbreviated ptkp) so that a taxable income (indonesian: penghasilan kena pajak or abbreviated pkp) is obtained. the taxable income (pkp) is multiplied by the imposition of a progressive tax rate as specified in the provisions of article 17 of the income tax law. the results of these calculations are income tax payable to the legal professional during the year. if the honorarium paid is tax deductible, then the tax deduction can be a deduction factor for the income tax payable (of course, evidenced by valid proof of withholding from the tax cut). the tax difference owed by the legal professional must be paid in full and then reported to the directorate http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 145 available online at http://journal.unnes.ac.id/sju/index.php/jils general of taxes through the local tax service office in the form of an annual tax report (spt) that has been prepared and signed. b. legal profession that organize records (menyelenggarakan pencatatan) the legal professional who administers and organize records is a legal professional who, in carrying out his duties and authority, has a gross circulation of less than rp4,800,000,000.00 in 1 year. records are an obligation that must be done by taxpayers who do free employment but do not keep bookkeeping. in this case what is meant by recording based on the provisions of article 28 paragraph (9) of the uu kup is data collected regularly about gross circulation or revenue and / or gross income as a basis for calculating the amount of tax owed, including income that is not a taxable object and/or subject to final tax. in this model, the fees paid to the legal professionals due the legal service given by the user must be deducted by the service user first and then the rest is paid to the legal professionals. this is in accordance with the provisions of article 21 paragraph (1) letter d of the income tax law that requires users of legal professionals’ services, both legal entity and individuals to make tax deductions for honorariums paid to the legal professionals. but in practice the tax deduction that deducts the notary tax from the honorarium to be paid is only in done by corporate taxpayers, one and the other because the corporate taxpayers have comprehensive bookkeeping, knowledgeable staff and adequate infrastructure. in addition, in essence the taxpayer entity will always keep bookkeeping because it is required by law, so there will be no difficulty in reporting any taxes withheld at the time of reporting the annual tax report (spt). tax deduction by individual taxpayers is very minimal once again for the same reasons as mentioned in the previous model. as a consequence, it is the legal professions who then have to pay his own withholding income tax which is then paid as a result of our income tax system which adopts a selfassessment system. at the end of the taxation period, the legal professional must independently (as a consequence of the self-assessment system) calculate his tax liability within the 1 tax year with the following calculation: the legal professional looks for the entire accumulated (amount) of gross income he/she gets multiplied by 50% (special method for the legal profession who http://journal.unnes.ac.id/sju/index.php/jils 146 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils organizes records with the calculation norm). the results of these calculations are then net income legal professional must pay by reducing the non-taxable income (ptkp) in order to obtain a taxable income (pkp). the taxable income (pkp) is multiplied by the imposition of a progressive tax rate as specified in the provisions of article 17 of the income tax law. the results of these calculations are income tax payable to by legal professional during the year. if the honorarium paid is tax deductible, then the tax deduction can be a deduction factor for the income tax payable (of course, evidenced by valid proof of original withholding tax deduction). the tax difference owed by the legal professional must be paid in full and then reported to the directorate general of taxes through the local tax service office in the form of an annual tax report (spt) that has been prepared and signed. b. constraints and consequences of implementing prevailing tax regulations related to legal professionals’ income tax (a classical-contemporary point of view) researcher refer to this view as a classic-contemporary view because in reality the implementation and imposition of tax regulations related to income tax that is paid legal professional in connection with the honorarium received has referred to the concept of regulation in the income tax law that has been in force since 1983. the implementation of the draft regulation continues until now and the obstacles faced are always the same from year to year. that is what then gives the view that these constraints have existed since the past (classical) to the present (contemporary), despite the tax reforms that have been carried out, particularly in the area of convenience in terms of payment, deduction and tax reporting. the constraints faced related to the implementation and imposition of tax regulations in connection with income tax received by a legal profession, including the following: 1. the deduction, payment and income tax reporting model for the honorarium received by the legal profession, namely the legal profession model that maintains bookkeeping and the legal profession model that organize records still impose obligations for service users who pay the http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 147 available online at http://journal.unnes.ac.id/sju/index.php/jils honorarium to deduct income tax from the honorarium to be paid. pragmatic implementation, not all service users know and understand the imposition of tariffs imposed on respective legal profession, one and the other because the determination of the tax rate imposed by the legal profession is progressive, it keeps on changing (increasing) based on the amount of gross income that has been received (of course only the legal professional itself that knows the extent of his income, not other party). with regard to the above conditions, the legal professional at the end of the tax year must recapitulate and return to pay his income tax as our income tax legal system adopts the self-assessment system. this means that in paying income tax on the honorarium received by a legal profession is carried out by 2 parties, namely: the service user who deducts withholding income tax and the legal professional him/herself. 2. withholding income tax deductions made by service users can only be recognized as a tax credit if the legal profession himself has valid proof of deduction for reporting purposes on the annual tax report (spt). the proof of deduction must be requested by them to each and every person who deducts his tax. this is not effective, of course, because legal profession in providing legal services not only focuses to specific person or certain group. the proof of deduction is also not immediately accepted by the legal professional because in the process of issuance it requires time for the signing of the withholding tax deduction slip. the burden of recalling the income tax withholding who has not submitted the original proof of withholding tax will be an obstacle for the legal profession in carrying out his main duties and authority. 3. in the income tax law, there is also no regulation regarding income tax payments on honorariums paid by individuals (naturlijk persoon) recipients of services to legal professional. based on our income tax law, individuals (naturlijk persoon) service recipients who pay honorariums to the legal professional must deduct taxes and make their own records so that at the end of the tax year the deduction is reported to the directorate general of taxes through the reporting of annual tax report (spt). of course this cannot be practiced given the understanding of tax knowledge every person is different. as a consequence, the legal professional must again pay his income tax as a consequence of our income tax legal system which adopts a self-assessment system. again, http://journal.unnes.ac.id/sju/index.php/jils 148 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils this condition illustrates the payment of tax which has the potential to cause multiple imposition of the same tax object. 4. the legal profession may be able to file an overpayment of tax as a tax credit, but this must be proven by original proof of withholding tax deduction and by first carrying out a tax audit that takes a long time. 5. legal professional are also required by article 25 of the income tax law to pay monthly income tax instalments. the amount of tax instalments that must be paid regularly each month by a legal professional in the current tax year is the amount of income tax (pph) owed according to the previous year's annual tax report (spt). in short, the amount of income tax paid in the last year becomes a reference to the amount of tax that must be paid in the current year each month in instalments. here, the income tax law makes a projection of the value of income tax that must be paid in the current year in instalments using the performance of the previous tax year. the problem faced in real practice is that no legal profession can tell the number of legal service they will be giving out because every month will always be different (inconsistent) from time to time. every legal professional must again provide sufficient funds each month to be paid as income tax instalments for the current year regardless of how many honorariums he/she has received in the current month. the complexity of the legal profession tax calculation, deduction, payment and reporting has the potential to result in a legal profession compliance and compliance with tax regulations. as a public official appointed by the state, of course this will negatively impact the image and dignity of the legal profession institution itself. moreover, the legal profession appointed by the state and as a graduate of law should give a good example of obedience and compliance with regulations, including tax regulations. the researcher quotes one of the opinions of tan thong kie in his book that discusses civil law notary and tax. tan thong kie explained that although a civil law notary has received education in taxation, it must be recognized that he/she does not practice daily in that particular field, so he/she does not know the twists and turns in taxation matters like a tax consultant do. except for giving general advice on the subject, a civil law notary should encourage the customer to discuss the matter freely with a tax http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 149 available online at http://journal.unnes.ac.id/sju/index.php/jils expert. a civil law notary is not a tax official.41 this opinion reinforces that there is a very relevant relationship related to tax regulations along with their complexity and its effect on the understanding and tax compliance of legal profession. c. are the tax regulations related to the income tax on legal professionals’ honorarium is still relevant and feasible? to address the issue of the relevance of special tax regulations on this legal profession’s honorarium, researcher used the view of progressive legal theory by satjipto rahardjo as the basis for analysis. the view of progressive legal theory, according to satjipto rahardjo, is an exploration of an idea with 9 core points as follows:42 1. law rejects the analytical tradition of jurisprudence or rechtsdogmatiek and shares understanding with streams such as legal realism, freirechtslehre, sociological jurisprudence, interressenjurisprudenz in germany, natural law theory and critical legal studies; 2. the law rejects the opinion that order only works through state institutions; 3. progressive law is aimed at protecting the people towards the ideal of law; 4. the law rejects the status-quo and does not want to make the law as a technology that has no conscience, but rather a moral institution; 5. law is an institution that aims to bring people to a just, prosperous life and make people happy; 6. progressive law is "pro-people law" and "pro-justice law"; 7. the basic assumption of progressive law is that "law is for humans", not vice versa; related to this matter, the law does not exist for itself; so every time there is a problem in and with the law, the law is reviewed and corrected, not the people who are forced to be included in the legal system; 8. law is not an absolute and final institution, but very much depends on how people see and use it, people are the determinants; 41 tan thong kie, studi notariat & serba-serbi praktek notaris (2013). 42 romli atmasasmita, teori hukum integratif (2018). http://journal.unnes.ac.id/sju/index.php/jils 150 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils 9. law is always in the process of continuing to be (law as a process, law in the making). moving on from the great thought of progressive law by satjipto rahardjo, researcher considered that the legal view rejected order in taxation which would only work through state institutions. awareness of tax regulations cannot only be created through regulations enforced by taxation institutions, but also awareness of the people as determinant (taxpayers) themselves. however progressive legal thinking is to protect all indonesian people in general with the aim of going towards the ideal of law. as a positive legal view that does not want to make law as a technology that is not conscientious, but a moral institution, then efforts must be made to "humanize" the law. the law must learn from the processes of human life. the established law must pay attention to the conditions and processes of human life in an agile manner. therefore, each tax regulation product that is promulgated must reflect the situation as much as possible to contribute and benefit to humans themselves. this view is also inspired by progressive law that is pro-people, meaning that the law formed is the law that is on the side of the people, not on the side of the ruler or certain class. the basic assumption of progressive law that law is for people and vice versa also sharpens the analysis and discussion of funds in this section. existing tax laws and regulations are concepts of thought and regulation that began in 1983. tax laws, especially income tax, do not exist for themselves, but for something broader and larger. therefore, every time there is a problem with the application of the law, the law must be reviewed and corrected, not the other way around when people are forced to be part of the legal system. it should be remembered that the current law is not an absolute and final regulatory institution, but always moves in line with the people who use the law. the law always develops and grows along with human life. this concept of thinking is what satjipto rahardjo called law always in the process of continuing to be (law as a process, law in the making). the taxation regulation is related to income tax on the honorarium received by the legal profession at this time if it feels that it does not provide maximum benefits to the legal profession (in particular) and the wider community (in general). if the legal profession is comfortable in paying taxes, it will actually have a positive impact on the level of compliance with the tax law. this of course will also have a direct impact on state revenue, http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 151 available online at http://journal.unnes.ac.id/sju/index.php/jils which will also indirectly contribute to the prosperity and welfare of the indonesian people. law exists for the people so that if people are not comfortable with the implementation and application of the law, it is not the people who are forced to follow the will of the law, but the law must be changed to adjust the people’s will with the main goal for the welfare of the entire indonesian people. of course this view is not intended to reduce the binding power of a law (supremacy of law), but to re-question what the reasons for the existence of the law itself. of course the final goal is to establish 3 legal objectives according to gustav radbruch43 (german lawyer and legal philosopher), namely justice, legal certainty and legal purposiveness.44 changes in tax law are a certain reality. in the netherlands, for example, the increasing number of tax-related legislation is largely due to the efforts of tax legislators who seek to exercise effective and efficient control in the face of an increasingly complex society. tax avoidance, for example, often leads to more detailed legislation and tends to lead to too much regulation on anti-abuse. as a result, tax laws are often amended to adjust to changing circumstances. furthermore, legislators increasingly intervene in the freedom of citizens with the aim of directing society (legislators increasingly interfering with the liberties of citizens in order to steer society). an example is the dutch tax law that contains all types of tax incentives, mostly in the form of tax deductions, for example, for bicycle trips, employee training, child care centers, dutch film production, research and development, ecological and investment-friendly investments. no wonder legislators believe that good law is whatever the majority wants in parliament.45 43 the main focus is on the ultimate goal of the law according to gustav radbruch, the law enacted must be able to reflect the real state of social life in society, with empirical and pragmatic way. if there are other alternatives in the law that can be taken which can provide maximum benefit, the law can be changed and adjusted. lawmakers who are representatives of the people and the government must be more agile towards such the objectives of law, the law must be able to reflect as much as possible the social life of society and provide maximum benefits to humans. the main purpose of this adjustment is not to question the binding power of the law, but only the method of implementing the law that is adapted to the final goal is to remain the same as what is aspired, which leads to the realization of justice, certainty and ultimately benefit (purposiveness). 44 gribnau, supra note 28; gribnau, supra note 28. 45 gribnau, supra note 28. http://journal.unnes.ac.id/sju/index.php/jils 152 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils utilitarianism has the basic characteristics of law which is future oriented and is based on the principle of utility.46 the goal to be achieved according to the views of utilitarianism is underlying the principle of expediency, which is the law must benefit as many people as possible through a sense of justice and equality that can be accepted by all parties, in order to achieve legal certainty.47 tax paid by legal profession as their economical sacrifice would benefit the majority of indonesian indirectly through the government’s planning and development. thus, an effective taxation would bring happiness to the majority of indonesian by looking at the utilitarianism’s point of view. after all, morality and law must rely on the fact that humans will always pursue utility (happiness).48 the researchers finally reach the idea that the real law is not the final and absolute final result. law is a process that is actually always changing and continues to be better. the law must be able to answer the problems that exist in society. law is an instrument that can reflect people's lives that actually take place. therefore law exists for people and not vice versa. tax regulations, especially those related to the topics that researchers have adopted, namely: regulations related to income tax (pph) on honorariums received by legal profession can still be adjusted according to contemporary conditions. tax regulations related to income tax (pph) on honorarium received by legal profession should not be an instrument that diverts (focus) the more important position of the legal profession, namely providing legal services in the legal sector to the wider community. regulation that facilitates legal profession but does not cause financial loss to the state is also a win-win solution for increasing profession’s compliance with the tax regulations. every legal profession in principle wants to obey the law, but it will be even more obedient if the law can provide reasonable comfort to them. surely this progressive regulation can have a positive impact ultimately on improving the welfare of the indonesian people at large. 46 ibnu artadi, menggugat efektivitas penerapan pidana penjara pendek: menuju suatu proses peradilan pidana yang humanis, 24 j. huk. pro justitia 376–386 (2006), journal.unpar.ac.id/index.php/projustitia/article/download/1148/1115. 47 rio christiawan, kajian filosofis yuridis implementasi sistem kesehatan nasional dalam perspektif utilitariansime, 1 j. staatrechts 34–56 (2017), http://journal.uta45jakarta.ac.id/index.php/staatrechts/article/view/1024; afrilian perdana, dahlan & mahfud, penyelesaian wanprestasi dalam perjanjian jual beli melalui media elektronik, 2 j. ilmu huk. 52–57 (2014), http://www.jurnal.unsyiah.ac.id/mih/article/view/4576. 48 arief budiono, teori utilitarianisme dan perlindungan hukum lahan pertanian dari alih fungsi, 9 j. jurisprud. 102–116 (2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 153 available online at http://journal.unnes.ac.id/sju/index.php/jils iii. efforts to reconstruct the laws related to income tax on legal professionals’ honorarium from the elaboration stated above, there are several efforts that the legislature and executive can take in order to create a better laws and regulations related to the legal professionals’ income tax that are more propeople. one and another based on the utilitarianism theory and the progressive law theory as the basis, the notion to reconstruct a better law and regulation best suited for this contemporary era are essentially needed. nevertheless, there are still several considerations that need to be considered for the efforts to reconstruct the laws and regulations related to the legal professions’ income tax. furthermore, many researchers also found out that the knowledge of taxpayers towards the taxation laws, the level of trust in government, tax socialization, professional’s commitment, tax apparatus’ services and tax awareness are the antecedent of tax compliance.49 a. legal political paradigm in the formation of laws and reconstruction of laws and regulations paradigm is a reference used as a basis for thinking. this is important to emphasize before starting the process of establishing the law in question. the philosophical and constitutional paradigm that must be fulfilled in the formation of the said law must at least contain 4 elements: 1) preamble of the 1945 constitution of the republic of indonesia; 2) pancasila; 3) the 1945 49 diah wahyu wijayanti & noer sasongko, pengaruh pemahaman, sanksi perpajakan, tingkat kepercayaan pada pemerintah dan hukum terhadap kepatuhan dalam membayar wajib pajak (studi wajib pajak pada masyarakat di kelurahan pajang kecamatan laweyan surakarta), 2 in seminar nasional dan the 4th call for syariah paper (sancall) 2017 308–326 (tim editor ums ed., 2017), https://publikasiilmiah.ums.ac.id/xmlui/handle/11617/9247; marisa setiawati muhamad, meinarni asnawi & bill j. c. pangayow, pengaruh sosialisasi perpajakan, tarif pajak, sanksi perpajakan, dan kesadaran perpajakan terhadap kepatuhan pelapor spt tahunan wajib pajak orang pribadi (studi empiris pada kpp pratama jayapura), 14 akuntasi keuang. drh. 69–86 (2019), ejournal.akuntansiuncen.ac.id/index.php/jurnalakuntansiuncen/article/download/92/71; tambun, supra note 8; nurwati, kesadaran perpajakan, pelayanan fiskus, dan kepatuhan wajib pajak (studi pada wajib pajak orang pribadi yang melakukan kegiatan usaha dan pekerjaan bebas), 5 j. liq. 27–34 (2016). http://journal.unnes.ac.id/sju/index.php/jils 154 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils constitution of the republic of indonesia; and 4) unitary state of the republic of indonesia.50 law is abstract, cannot be seen and cannot be touched. what can be seen is the everyday human behavior and human’s legal behavior. the law itself is the work of human beings in the form of norms that contain instructions for humans to behave. humans are intelligent beings. their behavior can be normatively regulated; norms that are determined as the values of his life. through normalizing this behavior, law enters all aspects of human life, as steven vago illustrated "the normative life of the state and its citizens". in order for this behavior to be based on our philosophical foundation in the pancasila values, the positive legal norms prevailing in indonesia must reflect pancasila.51 the legal construction as stated in the legal norms which are specifically stated explicitly in article 2 of the law of the republic of indonesia number 12 of 2011 concerning formation of laws and regulations which reads: "pancasila is the source of all sources of state law". the construction of legal norms in article 2 expressly states that in the context of carrying out the entire series of processes of forming laws and regulations, it must be based on the noble values of pancasila as the basis of the state, the nation's views and the soul of the personality of the nation and the state of indonesia. this postulate of legal norms which was clearly stated in article 2 stated that pancasila was the source of all sources of state law. relevant to this, in a brief analysis of the existence of very basic legal norms as stated in article 2 by taking into account the basic law and other laws and regulations, there are 3 main pillars as a fundamental anchor that must be guided in forming statutory regulations, that is:52 1. construction of these norms in a paradigmatic perspective, commonly referred to as a philosophical foundation (philosophy of paradigm), meaning that the position of the pancasila as the basis of the nation, especially in the context of implementing the process of establishing laws that all pancasila values must be used as a source of resources main reference, 50 idham, paradigma politik hukum pembentukan undang-undang guna meneguhkan prinsip kedaulatan rakyat dan indonesia sebagai negara hukum (2010). 51 bahder johan nasution, kajian filosofis tentang keadilan dan hukum (dari pemikiran klasik hingga modern), 11 al-ihkam j. huk. pranata sos. 247–274 (2016). 52 idham, supra note 50; david tan, transformasi hukum di bidang kontrak perdagangan internasional ke dalam hukum positif indonesia, 2018. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 155 available online at http://journal.unnes.ac.id/sju/index.php/jils henceforth derivate (derived) into the legal principles, norms and articles of a legislation that will be formed; 2. all provisions in the form of legal norms and articles must be mandated in the state constitution, namely the 1945 constitution of the republic of indonesia (constitutional of paradigm); 3. must be based on indonesia as a state of law (juridical of paradigm), in this context it must be noted that carrying out the process of forming a product of legislation must be based on the principles and characteristics of indonesia as a state of law, the rule of law states that there are at least there are 3 fundamental aspects that must be considered, namely: 1) high regard for the law (supreme of law), 2) equality before the law, and 3) the law must be implemented based on legal provisions (due process of law), while the characteristics of the rule of law contain at least 3 important aspects, namely: 1) high regard for the implementation of human rights, 2) an independent court and judge, and 3) the implementation of the principle of legality. the legislative system in indonesia positions pancasila as the source of all sources of state law. in the framework of hans nawiasky's thought, pancasila occupies the highest position in the level of legal norms as a staatfundamentalnorm while in the theory of stufenbau des recht from hans kelsen as a groundnorm. the 1945 constitution of the republic of indonesia is the basic law in the legislation in theorie van stufenbau der rechtsordnung from nawiasky. in accordance with article 7 paragraph (1) of the law of the republic of indonesia number 12 of 2011 concerning formation of regulations of legislation, the types and composition of the hierarchy of laws and regulations are: a) the 1945 constitution of the republic of indonesia; b) decree of the people's consultative assembly; c) government act/regulation in lieu of law; d) government regulations; e) provincial regulations; and f) regency/city regional regulations.53 legal politics according to bellefroid is a part of legal science that examines changes in applicable law that must be made to meet the new demands of community life (legal politics investigates what changes must be made to the current law, in order to meet the new conditions of life social). the development in question is trying to make the ius constitutum developed 53 adrian joshua lumban tobing, hak uji materiil peraturan daerah pajak dan retribusi daerah, 49 j. huk. pembang. 224–240 (2019). http://journal.unnes.ac.id/sju/index.php/jils 156 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils from old legal systems, become ius constituendums or laws for the future.54 according to utrecht, legal politics determines the proper rules. legal politics seeks to make rules that will determine how people should act. legal politics investigates what changes must be made in the current law to be compatible with social reality (sociale werkelijkheid).55 legal politics is closely related to the reconstruction of laws and regulations because the effort to reconstruct legislation is actually an effort to identify and investigate the symptoms of changes that occur in the current law in society. the purpose of the amendment is to form a new law in accordance with the current times and the people who are the subject of the law. b. contemporary concept of reconstruction of the regulations relating to income tax of legal professions’ honorarium as mandated by the constitution that matters relating to taxes and other levies that are coercive in nature are regulated in the law, then the actual material law contained in the law only further regulate the provisions of the constitution of the republic of indonesia year 1945 which includes: human rights; citizens' rights and obligations; state implementation; state territory and regional division; citizenship and population; and state finances. in addition, the material contained in the law can contain things that are ordered by a law to be regulated by law.56 in answering this problem, researcher chose to use the legal systems theory by lawrence m. friedman as a basis for analyzing the instruments that play a role in creating a good and effective legal construction. however the imposition of income tax on honorariums received by legal profession is actually a regulation that is part of the taxation legal system in indonesia. lawrence m. friedman said that the legal system consists of 3 elements/instruments, namely the legal substance (legislation), legal structure and legal culture. these three components support the operation of the legal system in a country. in social reality, the existence of the legal system contained in society experiences changes as a result of influence, 54 abdul latif & hasbi ali, politik hukum (2010). 55 utrecht, pengantar dalam hukum indonesia (1961). 56 ahmad yani, pembentukan undang-undang & perda (2011). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 157 available online at http://journal.unnes.ac.id/sju/index.php/jils what is called modernization or globalization either in evolution or revolution 57. the elements according to lawrence m. friedman as a determining factor whether the legal system can work well or not. soerjono soekanto said, these three components are part of law enforcement factors which cannot be ignored because if ignored will result in not achieving the expected law enforcement.58 the substance of the law (legal substance) relates to the process of making a legal product carried out by lawmakers. values that have the potential to cause legal phenomena in society are formulated in a statutory regulation, whereas the making of a product of the legislation is influenced by the political atmosphere in a country.59 legal structure is the framework or framework, the part that persists, the part that gives a kind of shape and boundaries as a whole. the legal structure is the institutionalization of the existence of law. the legal structure here includes state law enforcement agencies, such as courts, prosecutors, the police, lawyers and law enforcement agencies specifically regulated in the law. legal culture is a human attitude toward law and the legal system-beliefs, values, thoughts, and expectations. legal culture is an atmosphere of social thought and social power that determines how law is used, avoided or abused 60. legal culture is an element of social attitudes and values. legal culture refers to the parts that exist in legal culture that direct social forces towards or away from the law and certain ways.61 according to fuad bawazier (former minister of finance of the republic of indonesia in the development cabinet vii of 1998), the 1994 tax reform was intended to maintain the effectiveness of the implementation of the self-assessment principle, namely by minimizing the interaction of the tax apparatus with the taxpayer. in addition, the 1994 tax reform was intended to implement as far as possible the final income tax (final income tax) as long as the conditions could be met, able to increase tax revenue and be able to cover leaks (corruption, collusion and nepotism) that occurred. the application of final pph has proven to be effective and attractive to 57 saifullah, sosiologi hukum (2007). 58 nainggolan et al., supra note 23. 59 arfin & leonarda sambas kusumaningsih, teori-teori hukum: klasik dan kontemporer (2016). 60 id. 61 lawrence m. friedman, the legal system: a social science perspective (m. khozim ed., 2017). http://journal.unnes.ac.id/sju/index.php/jils 158 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils taxpayers because in addition to being simple and the mechanism that is easy, it also provides legal certainty and a sense of justice for taxpayers with similar income. as for the directorate general of taxes, the application of final income tax is not only easier in planning the amount of tax revenue, but also because the cost of collecting it is very cheap, but it gives a significant increase in tax revenue. final income tax is like taking public money (tax) without sweat and those whose monies are being taken also do not complain.62 therefore, the researcher has the idea that the income tax on the honorarium received by the legal profession in connection with the legal services provided can be given alternatives to be paid in the form of final income tax. this model can be added to the tax payment model from the two previous regulatory models, namely: the model where legal professionals and organizes maintains bookkeeping and the legal professional model that organizes records the norms of calculation based on the regulation of the director general of tax number: per-17/pj/2015 concerning net income calculation norms. the intended alternative nature is that giving the freedom to each legal professional to choose to use one of the three models mentioned above. this alternative nature is permitted in the taxation law world because the current tax regulations relating to income tax on honorarium received by legal professions in connection with the legal services they provide also adhere to alternative properties, one and the other with reference to the regulation of the director general of tax number: per-17/pj/2015 concerning norms of net income calculation. the main obstacle in the implementation of the final tax on honorarium received by legal profession in connection with the legal services they provide is the income tax law itself. in the provisions of article 4 paragraph (1) it has been defined that a legal professional’s income in the form of an honorarium which is a taxable income that falls into the category of free employment. the categorization directly also means that the income received by the legal professionals does not include the final tax. on the one hand, the regulation regarding the final tax in the income tax law is also regulated in the provisions of article 4 paragraph (2) of the income tax law. the provisions of article 4 paragraph (2) detailing any income that may be 62 bawazier, supra note 31. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 159 available online at http://journal.unnes.ac.id/sju/index.php/jils subject to final tax, one of which is opening up the opportunity of the income tax law itself which gives freedom to the government, especially in letter e the paragraph which reads: certain income others are regulated by or based on government regulations (indonesian: peraturan pemerintah or abbreviated pp). therefore, the researcher recommends making changes related to the legal substance (legal substance) of the income tax law, especially the provisions of article 4 paragraph (1) of the income tax law in order to provide an opportunity for the honorarium which legal profession receives as final income tax. legal professional is given the freedom to choose whether he will organizes a bookkeeping model, the implementation of records with the calculation norms based on regulation of the director general of tax number: per-17/pj/2015 concerning norms of net income calculation norms, or the operation of recording/bookkeeping with the honorarium received is taxable in nature of final income law. in addition the government must also enact separate government regulations governing the granting of opportunities to legal professionals to choose the nature of the final income tax on the honorarium it receives, because in the provisions of the income tax law itself which mandates that certain other income subject to tax be final for governed by or based on government regulations (pp). the final income tax imposition is also an effort to encourage the fulfilment of voluntary tax compliance obligations and to encourage the contribution towards state revenue. a real example of what the government has done is to issue government regulation number 46 of 2013 concerning income taxes on income from businesses received or obtained by taxpayers who have a specific gross distribution. in this government regulation it is stipulated that the imposition of income tax (pph) which is final for the income received or obtained by taxpayers with certain gross circulation restrictions. this government regulation is the application of a presumptive regime model in taxation. the presumptive regime itself is a form of taxation approach applied in an economy where the perpetrators still have limited administrative and bookkeeping capabilities. for this reason, a special taxation design is needed with the aim of minimizing the cost of compliance (researchers also add potential loss due to lack of compliance). meanwhile, the income tax presumptive regime (pph) model is usually used especially in countries where the majority of taxpayers are hard-to-tax groups and inadequate administrative resources. in these http://journal.unnes.ac.id/sju/index.php/jils 160 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils countries most taxpayers do not have financial transparency which allows for effective taxation. the action was taken by the government because of an indication of a mismatch between the contribution of gross domestic product (gdp) and tax contributions from msmes (micro, small and medium enterprises).63 previous experiences shows that implementation of final income tax is really feasible and suitable. in addition, the final income tax can also solve the problems faced by a legal profession in connection with the honorarium it receives, namely for example the problem of double taxation due to unclear tax deduction by the service user. in the case of the final income tax, the legal professional himself must pay his tax each time he receives an honorarium. the calculation of the amount of tax that must be paid from the honorarium he received was also more certain because the imposition of final income tax rates which generally remained based on a certain percentage, not levied progressively. the legal professional also pays taxes according to the amount of the honorarium he received, regardless of whether the service user is a business entity or an individual person (naturlijk persoon). this means that tax imposition can be maximized because it is driven by ease and certainty in paying taxes, characterizing the realization of voluntary tax compliance. legal profession also does not need to provide funds to pay tax instalments article 25 of the income tax law because he/she is not classified as a recipient of income for free employment if he/she chooses the alternative taxation is final income tax. surely this condition is very beneficial for legal profession where the number of deeds he makes from time to time is always uncertain (inconsistent). in the context of taxation especially those related to honorariums received by legal professions whose nature is final income tax, the legal structure focuses on facilities and infrastructure. for this reason, the legal structure reconstruction model that must be carried out is to adjust relevant agencies, especially the directorate general of taxes, to be able to serve the legal professionals as applicant who in his position submits the third tax payment model, namely the honorarium paid is final income tax. because it 63 pusat kebijakan pendapatan negara-badan kebijakan fiskal, pengenaan pph final untuk wajib pajak dengan peredaran bruto tertentu, sebuah konsep kesederhanaan pengenaan pph untuk meningkatkan voluntary tax compliance, kementerian keuangan republik indonesia 10, https://www.kemenkeu.go.id/sites/default/files/kajian pph final umkm_pkpn.pdf (last visited sep 13, 2019). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 161 available online at http://journal.unnes.ac.id/sju/index.php/jils is an alternative, the legal professions must state his intention to choose the taxation of the final income tax towards honorarium by notifying the directorate general of taxes. of course this is no longer difficult considering its nature is the notification and legal institutions in the form of the directorate general of taxes themselves have been reformed. the tax payment system and the tax reporting system are also very up to date with the presence of an online system developed by the directorate general of taxes, namely direktorat jenderal pajak online or djp online. in relation to legal culture, in order to be able to direct social forces (the legal professionals) towards the way as intended by the law, certain methods can be pursued, one of which is to disseminate information to legal professionals so that they are more familiar with it. concretely, this can be done with the help of a profession organization in indonesia, such as the indonesian notary association (indonesian: ikatan notaris indonesia or abbreviated ini), indonesian advocates association (indonesian: perhimpunan advokat indonesia or abbreviated peradi), etc. the indonesian notary association (ini) and indonesian advocates association (peradi) itself extends to all parts of indonesia. the directorate general of taxes can work together with the indonesian notary association (ini) and indonesian advocates association (peradi), which is present in almost all districts and cities throughout indonesia, to collect and disseminate information to legal professions throughout indonesia. the researcher also recommends that in the curriculum of tertiary education in the field of law notary concentration, especially in tax law courses, it should also be taught about the tax obligation of the notary himself in connection with the honorarium he received. whilst in the advocate profession special education (indonesian: pendidikan khusus profesi advokat or abbreviated pkpa) can also be taught the same course regarding the tax obligation of advocate. summary of major findings in the course of this research and study, a number of findings have been made. prominent among these findings are summarized as follows: 1. empirical data shows that the legal professionals’ tax compliance rate in indonesia is still low along with the year-to-year low tax ratio. http://journal.unnes.ac.id/sju/index.php/jils 162 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. implementing the prevailing tax regulations on legal professionals’ honorarium are still full of complications and constraints, thus ineffective either based on the juridical aspects or the theoretical aspects. 3. the final income tax can be the contemporary solution and its implementation is holistically legitimate according to: the legal theories, the legal political paradigm on the formations of law (philosophy, constitutional and juridical or paradigm) and the practical reasoning that this type of tax is suitable to reach the hardto-reach tax payers, especially legal professionals. conclusion the tax regulation in current positive law is not only to provide legitimacy in terms of collection and jurisdiction, but also to ensure that tax collection is carried out in accordance with the principles of good taxation. positive law related to tax in indonesia has undergone many changes. legal changes with the terminology of tax reform in indonesia increasingly reflect the reality that there is a holistic commitment to improvement in the taxation sector. specifically, the regulations governing the taxation of honorariums received by legal profession in connection with the legal services they provide have been legally regulated in the provisions of article 4 paragraph (1) of the income tax law which classifies honorarium received by legal profession as income groups from free employment, so that by law honorarium received by a legal profession is subject to income tax under the income tax law. the taxation model implemented now is a classiccontemporary view because in reality the implementation and imposition of tax regulations related to income tax that is paid in connection with the honorarium received refers to the concept of regulation in the income tax law that has been in force since 1983. therefore, in its implementation also faces some real practical obstacles. the complexity of tax calculation, deduction, payment and reporting has the potential to reduce legal profession compliance to tax regulations. the view of utilitarianism theory by jeremy bentham and progressive legal theory by satjipto rahardjo is also appropriate in analysing whether the tax regulations are still relevant to be enacted or not. law is a process that is actually always changing and http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 163 available online at http://journal.unnes.ac.id/sju/index.php/jils continues to be better. the law must be able to answer the problems that exist in society. law is an instrument that can reflect people's lives that actually take place. therefore, law exists for humans and not vice versa. tax regulations, especially those related to the topics that researchers have adopted, namely: regulations related to income tax (pph) on honorariums received by legal profession can still be adjusted according to contemporary conditions. the concept of reconstruction of tax regulations related to honorariums received by legal profession can also be done based on the legal systems theory by lawrence m. friedman. recommendations researcher hereby recommend that the reconstruction of the income tax law be carried out, one and the other because in its implementation, there are still facing obstacles and constraint in relation to the provisions of income tax (pph) in connection with the honorarium received by the legal profession. reconstruction is when referring to the legal system theory by lawrence m. friedman, including changes to the legal substance (substansi hukum), legal structure (struktur hukum) and legal culture (budaya hukum). suggestions for legal substance are to add alternatives to the tax payment model from the two previous regulatory models, namely: the model that organizes bookkeeping and the model that organizes records with calculation norm based on the regulation of the director general of tax number: per-17/pj/2015 concerning norms of calculation of net income. the intended alternative nature is that the legal profession is given the freedom to choose the final income taxation method in addition to the two previous models. the concept of final income tax imposition is the concept of contemporary tax imposition. for that in substance the legal (legal substance) needs to be changed related to the substance of the income tax law, especially the provisions of article 4 paragraph (1) of the income tax law in order to provide opportunities to the honorarium to be imposed final income tax. final income tax also encourages voluntary tax compliance and contributes to state revenue. this provision is the application of a presumptive regime model in taxation. where the model of income tax presumptive regime (pph) is usually used especially in countries where the majority of taxpayers are hard-to-tax groups and inadequate administrative http://journal.unnes.ac.id/sju/index.php/jils 164 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils resources. in addition, the final income tax can resolve the constraints faced by the legal profession in connection with the honorarium it receives. in the context of taxation especially those related to honorariums received by legal profession whose nature is final income tax, the legal structure focuses on facilities and infrastructure. for this reason, the legal structure reconstruction model that must be carried out is to adjust relevant agencies, particularly the directorate general of taxes. in relation to legal culture, in order to be able to direct social forces (legal professionals) towards the law, certain methods can be pursued, one of which is to disseminate information to legal professional so that they are more aware and familiar with this new contemporary concept. for this matter, the directorate general of taxes can cooperate with the indonesian notary association (ini) and indonesian advocates association (peradi), which are present in almost all districts and cities throughout indonesia for easy access. acknowledgments this paper is made possible due to the gracious research funding/contribution by universitas internasional batam (uib) under the lembaga penelitian dan pengabdian kepada masyarakat (lppm) universitas internasional batam (uib) internal research grant scheme 2019 under the research, dissemination and publication contract number: 026/lppm/kp-uib/xii/2019 dated the december 30th, 2019. opinions in this paper are the authors’ opinion and do not reflect the opinion or policy of the institution and/or grant provider. the authors acknowledge the contributions of many people who helped in making this journal article possible. including but not limited to colleagues and peers in the faculty of law of universitas internasional batam. the authors would like to convey their special thanks to the panel of reviewers from journal of indonesian legal studies (jils) for their valuable reviews, evaluations, commentaries, inputs and insights to the improvement of this paper. expression of gratitude is also given to the editor-in-chief and the managing editor of journal of indonesian legal studies (jils). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 165 available online at http://journal.unnes.ac.id/sju/index.php/jils references andasasmita, k. 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(2015). pengendalian sosial kejahatan: suatu tinjauan terhadap masalah penghukuman dalam perspektif sosiologi. jurnal cita hukum, 3(1), 77–90. https://doi.org/10.15408/jch.v2i1.1842.2015.3.1 zabidi, a. z. (2008). paradigma utilitarianistik dalam istinbâth hukum islâm. jurnal hukum dan pranata sosial, 3(1), 368–382. https://doi.org/https://dx.doi.org/10.19105/al-ihkam.v3i1.2594. about authors david tan is a lecturer at faculty of law, universitas islam batam (uib), indonesia. his main area of expertise are business law, private law, tax, employment law, property law and commercial law. his teaching interests range across the private law and business law. he has researched and published extensively in the field of obligations law (private law). lu sudirman is a senior lecturer in law at the faculty of law, universitas internasional batam, where his main areas of expertise are business law. currently, he is also the dean of the faculty of law of universitas internasional batam. he has for many years also taught investment law and business law for both undergraduate and postgraduate students. his teaching and research interests range across the business law. he has researched and published extensively in the field of business and investment law. http://journal.unnes.ac.id/sju/index.php/jils 170 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils quote we contend that for a nation to try to tax itself into prosperity is like a man standing in a bucket and trying to lift himself up by the handle.” winston s. churchill http://journal.unnes.ac.id/sju/index.php/jils attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? 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this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf239539e01fef • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare jils (journal of indonesian legal studies) volume 5(1) 2020 187 available online at http://journal.unnes.ac.id/sju/index.php/jils review article the constitutional court ultra petita as a protection form of economic rights in pancasila justice emy hajar abra1 , rofi wahanisa2 1 faculty of law, universitas riau kepulauan, batam, indonesia 2 faculty of law, universitas negeri semarang, indonesia  my_87_hjf@yahoo.com submitted: december 10, 2019 revised: april 11, 2020 accepted: april 27, 2020 abstract social justice concept has been clearly emphasized at pancasila (the five fundamental values of indonesia) as one of common values of indonesia society. pancasila also recognized as the philosophical grondslag which makes pancasila as a reference of all indonesian citizens and state action, including in governance. the concept of social justice in pancasila implies that any natural resource management that has the potential to prosper and affect the indonesian people as a whole must be controlled by the state as well as used for the greatest prosperity of the people. this paper is intended to analyze, describe, and examine the constitutional court decision concerning to social justice especially in terms of economic rights. this paper discusses various decisions of the constitutional court that are ultra petita. this paper illuminated and highlighted that in two constitutional court decisions on water resources and the decision on the electricity law and the water resources law of the constitutional court in its decision to make an ultra petita decision by canceling the entire two laws, because that the article being tested is the heart of the law, thus seriously affecting the implementation of other articles in the law. therefore, with the ultra petita decision, in the future, the constitutional court is expected to be more progressive and responsive in seeing the problems that occur, especially related to the basic economic needs of the indonesian people. because the constitutional court is the guardian of the constitution whose main function is to maintain indonesia's highest legal order (constitution). keywords: ultra petita; constitutional court; economic rights; pancasila nationally accredited journal (sinta 2) jils (journal of indonesian legal studies) published by faculty of law, universitas negeri semarang, indonesia volume 5 issue 1, may 2020 issn (print) 2548-1584 issn (online) 2548-1592 http://journal.unnes.ac.id/sju/index.php/jils 188 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ……………………………….……………………………. 187 table of contents ………………..………………...………….. 188 introduction ….…………………………………………………. 189 method ………………………………………………………………. 192 i. research paradigm ….………………………………..…... 192 ii. types and approaches of research …….…..……… 194 iii. sources of data and data analysis ………………. 195 ultra petita in various constitutional court decisions: how does the court protect the basic rights of the people? …………………………………………. 196 i. ultra petita in electricity law …………………….. 201 ii. ultra petita in water resources law ……………. 203 ultra petita in progressive and responsive theory ……………………………………………………………….. 204 the protection of basic rights of people by ultra petita decisions ………………………………………. 207 i. constitutional court’s ultra petita on protecting economic rights ………………………… 207 ii. ultra petita economic rights in the form of pancasila justice ………………………………………….. 209 conclusion ………………………………………....…………...… 217 suggestion ………………………………………………………… 217 references ………………………………………………………… 218 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. how to cite: abra, e. h., & wahanisa, r. (2020). the constitutional court ultra petita as a protection form of economic rights in pancasila justice. jils (journal of indonesian legal studies) 5(1), 187-224. https://doi.org/10.15294/jils.v5i1.35965. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 189 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction the history of the founding of the constitutional court (hereinafter mk) begins with the adoption of the constitutional court idea in a constitutional amendment carried out by the people's consultative assembly (hereinafter mpr) in 2001.1 as formulated in the provisions of article 24 paragraph (2), article 24c, and article 7b of the 1945 constitution2 resulted from the third amendment which was ratified on november 9, 2001. the idea of establishing the constitutional court was one of the developments in legal thoughts and modern state that emerged in the 20th century. article 24c paragraphs (1) and (2) of the 1945 constitution are the legal basis for the authority of the constitutional court granted by the constitution, further authority related to the constitutional court is regulated in law number 8 of 2011 on amendments to law number 24 of 2003 concerning the constitutional court. in the case of the constitutional court's authority consisting of: adjudicating at the first and final level in reviewing the law against the constitution, deciding on disputes over the authority of governmental 1 jimly ashiddiqie, pancasila dan empat pilar kehidupan bangsa 13-15 (2019). the history of the formation of the constitutional court is very closely related to demands for community rights and justice in the law. in fact, the majority of judicial review decisions by the constitutional court only test the laws against the articles of the 1945 constitution but do not allude to the pancasila values as the basis for the analysis of decisions. so in the future, the constitutional court should be able to examine the law against the principles of pancasila, pancasila is not only used as a basis for analysis in the opinion of the constitutional court but must also be explicitly stated that a law article is contrary to the values of the pancasila or not. for more comprehensive comparison, please also see jimly asshiddiqie, membudayakan nilai-nilai pancasila dan kaedah-kaedah undang-undang dasar negara ri tahun 1945, prosiding kongres pancasila iii (2011); jimly asshiddiqie, gagasan negara hukum indonesia, paper presented in the national legal development planning dialogue forum organized by the national law development board of the ministry of law and human rights (2011, november); suko wiyono, empat pilar kehidupan berbangsa dan bernegara sebagai panduan dalam mewujudkan masyarakat adil makmur berdasarkan pancasila, 15 likhitaprajna. 37, 40-45 (2018); jimly asshiddiqie, undangundang dasar 1945: konstitusi kemajemukan berbangsa dan bernegara, papers presented at the gus dur memorial lecture hosted by the indonesian conference on religion and peace (icrp), jakarta (2011); udiyo basuki, politik hukum mahkamah konstitusi dalam membatalkan konsep empat pilar sebagai upaya mendudukkan pancasila sebagai dasar negara. 4 supremasi hukum: jurnal kajian ilmu hukum. 377, 380-386 (2015); donald e weatherbee, indonesia in 1984: pancasila, politics, and power. 25 asian survey. 187, 190-195 (1985); agustinus wisnu dewantara ss, pancasila dan multikulturalisme indonesia. 15 studia philosophica et theologica. 109, 115-119 (2015); michael morfit, pancasila: the indonesian state ideology according to the new order government. 21 asian survey. 838, 846-849 (1981). 2 the 1945 basic constitution of republic of indonesia [hereinafter as the 1945 constitution]. http://journal.unnes.ac.id/sju/index.php/jils 190 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils entities whose authority is given by the constitution, deciding upon the dissolution of political parties and deciding disputes concerning the results of general election. in addition, there are also "legal acts" of the constitutional court which are often carried out but the regulations are not explicitly sounded in regulations related to ultra petita. ultra petita itself in formal law implies the issuing of decisions on cases that are not prosecuted or grant more than requested. ultra petita, according to ranuhandoko is more than requested. in terms of the authority of the constitutional court, this is often found in cases of judicial review of the laws on the 1945 constitution. the constitutional court (mk) often decides with ultra petita on several of its decisions.3 the issue of ultra petita itself creates pros and cons in academics. the pros consider that this is a form of upholding substantive justice by referring to the progressive theory, while the cons consider that this is a form of noncompliance with procedural law or more on enforcing positivistic theory. 3 in a simple explanation, ultra petita is defined as a judge passing a decision on a case beyond what is demanded or requested. looking a little into civil law, ultra petita is regulated in article 178 paragraph (2) and (3) hir and article 189 paragraph (2) and (3) rbg, in that provision it explicitly prohibits a judge from making decisions beyond what is sued. the reason is simple, all return to obeying the principle of law is passive. the meaning of the principle is that the assembly may not add other matters themselves, and may not give more than requested by the parties (ultra petita non cognoscitur). but we do not stop in the discussion of civil law that focuses on the legal relationship of individuals, on this occasion the author is more focused on ultra petita conducted by the constitutional court as an institution of judicial power that has a function as a judicial control within the framework of checks and balances. see ipm ranuhandoko, terminologi hukum 113-121 (2000). see also sri mulyani, hak ex officio hakim dalam perkara hadanah kaitannya dengan asas ultra petitum partium: analisis putusan nomor 0864/pdt. g/2017/pa. badg. diss (2018); tanto lailam, pro-kontra kewenangan mahkamah konstitusi dalam menguji undang-undang yang mengatur eksistensinya. 12 jurnal konstitusi. 795, 815-819 (2016); muslimah hayati, analisis yuridis pro kontra pendapat terhadap putusan mahkamah konstitusi yang ultra petita. 7 jurnal wasaka. 30, 35-36 (2019); suwarno abadi, ultra petita dalam pengujian undang-undang oleh mahkamah konstitusi. 12 jurnal konstitusi. 586, 594-598 (2015); haposan siallagan, masalah putusan ultra petita dalam pengujian undang-undang. 22 mimbar hukum. 71, 75-78 (2010); ibnu sina chandranegara, ultra petita dalam pengujian undang-undang dan jalan mencapai keadilan konstitusional. 9 jurnal konstitusi. 27, 30-35 (2016); heri abduh sasmito, putusan ultra petita mahkamah konstitusi dalam pengujian undang-undang (suatu perspektif hukum progresif). 6 law reform. 55, 65-73 (2011); heri abduh sasmito, ultra petita decision of constitutional court on judicial review (the perspective of progressive law). 1 jils (journal of indonesian legal studies). 47, 50-63 (2017); ach rubaie, nyoman nurjaya, & moh ridwan, considerations constitutional court of indonesia decide verdict ultra petita, 6 academic research international. 412, 416-417 (2015); muhammad siddiq armia, ultra petita and the threat to constitutional justice: the indonesian experience. 26 intellectual discourse. 903, 915-924 (2018). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 191 available online at http://journal.unnes.ac.id/sju/index.php/jils hence, the ultra petita is often a debate and battle between the two theories above. furthermore, ultra petita basically have been regulated in law number 8 of 2011 on amendments to law number 24 of 2003 concerning the constitutional court. amendments to the law expressly forbid the constitutional court to make an ultra petita decision. in article 45a which reads: "decision of the constitutional court may not contain an injunction which is not requested by the applicant or exceeds the petition of the applicant, except for certain matters related to the principal application". furthermore, article 59 paragraph (2) states: "if necessary changes to the laws that have been tested, the parliament or the president immediately follows up on the constitutional court's decision as referred to in paragraph (1) in accordance with statutory regulations". but in reality, the "prohibition" provision was finally overturned by the constitutional court itself in a judicial review, with the granting of decision number 48 / puu-ix / 2011 and decision number 49 / puu-ix / 2011. based on the two decisions, it can be simply understood that the provisions of the ultra petita are "legal" only by the court. because these provisions are not permitted, they are also not prohibited by strict regulatory provisions. the constitutional court’ ultra petita in a number of judicial review decisions on the 1945 constitution contained an ultra petita act which in fact was in the interests of the basic needs of the indonesian people, especially in terms of economic rights. this can be found in the ultra petita's decisions in testing electricity law and water resources law. later this article will discuss, how the decisions of the constitutional court with ultra petita value turn out to be more oriented to the protection of the basic needs of the indonesian people, especially in terms of protecting economic rights. in fact, the protection of basic needs in terms of economic rights is part of the protection of constitutional norms, as well as carrying out the mandate of the pancasila state, especially in the fifth principle "social justice for all indonesian people". thus, the constitutional court was not just carrying out the needs of the ultra petita, but more than that, the court became one of the institutions that participated in carrying out the goals, objectives in the ideology of pancasila. http://journal.unnes.ac.id/sju/index.php/jils 192 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils method i. research paradigm paradigm is originated from the greek "paradeigma", from "para" (beside, next to) and "dekynai", (showing; which means: model examples, archetypes, ideal). according to the oxford english dictionary, "paradigm" is an example or pattern. however, in the scientific community the paradigm is understood as something more conceptual and significant, although it is not something taboo to debate.4 science has its own paradigm, sometimes we find scientists who hold to certain paradigms, even they are very rigid and closed, which causes them to be trapped into the trenches of knowledge. some scientists and researchers use a more open paradigm, this group can be said to not be adherents of the single or mono paradigm in research but belong to the category of multiple paradigm adherents.5 this research uses the constructivism paradigm, which views law as plural and plastic. it is said to be plural because the law is expressed in various symbols, languages, and discourses. the nature of legal plastic is defined as the nature and characteristics of the law that can be formed in accordance with human needs. and this constructivist paradigm flows more empirical legal theories. roscoe pound emerged with the concept of "sociological jurisprudence", which was then followed by karl llewllyn & jerome frank with "realistic jurisprudence" (legal realism).6 4 otje salman & anton f. susanto, teori hukum mengingat, mengumpulkan dan membuka kembali 43-58 (2008). see also paul van den hoven, analysing discursive practices in legal research: how a single remark implies a paradigm. 13 utrecht l. rev. 43, 56-58 (2017); amita dhanda, conversations between the proponents of the new paradigm of legal capacity. 13 international journal of law in context. 87, 91-93 (2017); laurensiu arliman, peranan metodologi penelitian hukum di dalam perkembangan ilmu hukum di indonesia. 1 soumatera law review. 112, 117-120 (2018). 5 id. 6 legal realism developed in tandem with the sociological jurisprudence, namely in the 20th century. the background to the emergence of legal realism is because: (1) there is a lawsuit against traditional values that are maintained and well-established, namely values that assume that law is ideal, (2) because the development of behavioral sciences, such as sociology and psychology that make people driven by myths such as religion, and (3) as a result of survey reports on the performance of the law, namely the rule of law and law enforcement. legal realism is a school of thought that began in the united states. famous figures from this realism are john grayman, oliver wondell holmes, jerome frank, and karl lewellyn. legal realism means a study of law as http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 193 available online at http://journal.unnes.ac.id/sju/index.php/jils the constructivism paradigm traced from max weber's thought assesses that human behavior is fundamentally different from natural behavior, because humans act as agents who construct in their social reality, both through giving meaning and understanding behavior according to weber, explaining that the substance of life forms in society is not only seen only from an objective assessment, but rather seen from individual actions arising from subjective reasons.7 something actually carried out, rather than just law as a series of rules contained in legislation. the philosophical basis of realism rests on the belief that when we perceive, we are aware of things that are independently of us. therefore, this belief implicitly involves a rejection of the view that what is perceived is nothing more than personal data. the doctrine applied to the investigation of a phenomenon involves the application of objective procedures which are not influenced by a sentiment/idealism. see charles l. barzun, jerome frank, lon fuller, and a romantic pragmatism. 29 yale jl & human. 129, 137-140 (2017); karl n. llewellyn, the common law tradition: deciding appeals 117-128 (2016); james j. chriss, on karl n. llewellyn, jurisprudence: realism in theory and practice. classic writings in law and society 105-115 (2017). teguh prasetyo & abdul halim barkatullah, filsafat, teori dan ilmu hukum : pemikiran menuju masyarakat yang berkeadilan dan bermartabat 65-74 (2012); hanoch dagan, “contemporary legal realism”, encyclopedia for law and social philosophy, mortimer sellers and stephan kirste (eds.), (2017); brian z. tamanaha, a realistic theory of law 237-241 (2017). meanwhile, sociological jurisprudence is a study that has a characteristic of the rule of law, which is an aspect of actual legal science, which is a branch of normative sciences, which aims at making laws effective in its implementation, based on subjective values. sociological jurisprudence is a study that sees law as a means of social control, a descriptive science that utilizes empirical techniques. this relates to the question of why legal instruments and their duties are made, sociological jurisprudence sees law as a product of a social system and as a tool to control and change that system. sociol ogical jurisprudence views law as a social reality. the basic attitude of the sociological jurisprudence is suspicion and see the law in action. sociological jurisprudence views that law is not autonomous. but it is influenced by non-legal factors in society such as economic, political, cultural, social and others. sociological jurisprudence views law as das sein (in reality). sociological jurisprudence also holds an empirical view. the method used by the adherents of sociological jurisprudence is descriptive. see also roger cotterrell, sociological jurisprudence: juristic thought and social inquiry 234-238 (2017); brian z. tamanaha, sociological jurisprudence past and present. law & social inquiry, 1-28 (2019); noga morag-levine,, sociological jurisprudence and the spirit of the common law. the oxford handbook of legal history (2018); eugene ehrlich & klaus a. ziegert, fundamental principles of the sociology of law 314-321 (2017); roscoe pound, new paths of the law: first lectures in the roscoe pound lectureship series, 125-132 (2006); natalie eh hull, roscoe pound and karl llewellyn: searching for an american jurisprudence 278-284 (1997); roscoe pound, social control through law 67-79 (1997); roscoe pound, law in books and law in action. 44 american law review. 12, 2534 (1910). 7 social behavior is behavior that is specifically directed at others. according to max weber behavior influences social action in society which then causes problems. weber recognized the problems in society as an interpretation. as for the degree that a behavior is rational (according to the measure of logic or science or according to scientific logic standards), then this can be understood directly. weber mentioned that social behavior is a function of people and their situation. what is meant here is that every human being will act differently in a greeting situation, http://journal.unnes.ac.id/sju/index.php/jils 194 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils constructivism of this paradigm views that reality is the result of the construction or formation of humans themselves. that reality is dual, can be formed and is one wholeness. reality exists as a result of the formation of one's thinking ability. knowledge produced by humans is not permanent but continues to grow. qualitative is based on the constructivist paradigm which holds that knowledge is not only the result of experience of facts, but also the result of the construction of the thought of the subject under study. human recognition of social reality is centered on the subject and not on the object, this means that science is not merely the result of experience, but is also the result of construction by thought.8 ii. types and approaches of research type of this research is doctrinal/normative/positivism legal research. normative research is legal research conducted by examining mere literature or secondary data. then the data collection technique used is to use library techniques, namely reviewing and examining existing library materials and documents, which are in accordance with the field of research of this dissertation. normative legal research in this paper includes: a. research on legal principles b. research on legal systematics c. research on the level of vertical and horizontal synchronization.9 in this paper the data collection technique used is the secondary data collection method, which is carried out by means of a literature study or document study of legal materials consisting of; primary, secondary and tertiary legal materials. each person's behavior reflects a collection of unique traits that are brought into a certain atmosphere that is behavior that is shown to someone else. see max weber, from max weber: essays in sociology 46-57 (2009); friedrich h. tenbruck, & max weber, the problem of thematic unity in the works of max weber. 31 the british journal of sociology. 316, 328-337 (1980); guenther roth & max weber, history and sociology in the work of max weber. 27 the british journal of sociology. 306, 310-314 (1976); sam whimster (ed), max weber and the culture of anarchy 57-68 (2016); edith hanke, lawrence a. scaff, &sam whimster (eds), the oxford handbook of max weber 345-368 (2019). 8 arifin zainal, penelitian pendidikan metode dan paradigma baru 45-47 (2012). 9 soerjono soekanto & sri mamudji, penelitian hukum normatif: suatu tinjauan singkat 35-39 (1990) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 195 available online at http://journal.unnes.ac.id/sju/index.php/jils this research approach in normative juridical research uses the doctrinal research approach. the law approach is carried out by examining all the laws and regulations relating to the legal issues being addressed. normative research certainly has to use a legislative approach because what will be examined are various legal rules which are the focus as well as the central theme of a study. for this reason, researchers must see the law as a closed system that has comprehensive characteristics (legal norms related to one another), all inclusive (a collection of legal norms that adequately accommodate existing legal problems), systemic (legal norms arranged systematically and hierarchies).10 iii. sources of data and data analysis the type of data used in this paper is secondary data, which consists of primary legal materials, secondary legal materials and tertiary legal materials. secondary data sourced from: a) primary legal materials, namely binding legal materials, consisting of: 1) pancasila 2) the 1945 constitution 3) law number 8 of 2011 amendment to law number 24 of 2003 concerning the constitutional court b) secondary legal material is legal material that provides an explanation of primary legal material, consisting of: research results and books c) tertiary legal materials are legal materials that provide instructions and explanations for primary and secondary legal materials such as: dictionaries, encyclopedias, and the internet. to get secondary data in this paper, the author use data collection method by literature study and document study. the final step in conducting this paper is data analysis. analysis can be formulated as a process of decomposition in a systematic and consistent manner against certain symptoms. systematic description of the symptoms or data that has been obtained either through a library approach that will be done in a descriptive qualitative way. the data collected from this paper is analyzed descriptively qualitatively, that is, the data obtained in the study 10 johnny ibrahim, teori dan metodologi penelitian hukum normatif 45-53 (2007) http://journal.unnes.ac.id/sju/index.php/jils 196 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils are described and arranged systematically in the form of sentence descriptions that are taken as meanings or conclusions. descriptive analytical research is in addition to providing a detailed description, writing and reporting an object or an event will also take general conclusions from the problems discussed. from the two methods of data analysis above, both of them use the same method in their writing, namely the inductive method. analysis of the data used in this paper is to use secondary data consisting of primary legal materials, secondary and tertiary legal materials, which are then processed and analyzed using various legal theories, legal principles, legal history, and other relevant regulations. from this normative study, the data were then analyzed using qualitative descriptive data analysis methods. ultra petita in various constitutional court decisions: how does the court protect the basic rights of the people? amendments to the 1945 constitution resulted in article 1 being added to paragraph (3), which is related to the status of the state of indonesia as a state of law. the consequence of a rule of law is that what is done by the state and citizens must be based on and subject to the law. in indonesia, law is not just what is written in a sole law. indonesia is familiar with written and unwritten law. the unwritten law itself is the law that applies in society such as the customary law, decency and politeness in the community. in addition, there are still customary law and islamic law which also enter as a legal system in force. therefore, in the matter of making indonesia a constitutional state, it is not only what is sounded through the legislation alone. moreover, exploring the existing law in society is more fundamental than just reading the text of a norm. after the big demands in 1998, changes in the state administration and all sides of indonesian law experienced many changes and led to a more responsive legal system as needed by the community. therefore, since 1999 many laws and state institutions or supporting institutions (state auxiliary organs) were born. some are based on the 1945 constitution with four http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 197 available online at http://journal.unnes.ac.id/sju/index.php/jils amendments and some are born based on legal orders such as the corruption eradication commission, the commission for the supervision of business competition and others the constitutional court (mk) itself is one of the institutions born from the results of constitutional amendments. the addition of article 24c makes the constitutional court as an institution mandated as a guardian of the 1945 constitution. its authority as stated in article 24c paragraph (1) of the 1945 constitution was mentioned; "the constitutional court has the authority to adjudicate at the first and last level whose decisions are final to examine the law against the basic law, decide upon disputes over the authority of state institutions whose authority is given by the constitution, decide upon the dissolution of political parties and decide on disputes concerning the results of general election.”11 based on the object of this paper, out of the four authorities and one obligation of the constitutional court which is most inherent and ultra petita decisions are often related to the authority to examine laws against the 1945 constitution. it does not mean the constitutional court's authority is "without limits", article 24c of the 1945 constitution has limited the powers of the constitutional court. the authority to regulate (regeling) remains a legislative domain based on the principle of people's sovereignty as the exclusive right of sovereign people's representatives to restrict someone. other powers can govern as long as it is mandated. in addition to the verdict handed down, the constitutional court also has power in regulation (judicial legislation) as the supreme court. the constitutional court's power is limited according to its position and function. its relationship with other powers is bound by the principle of checks and balances. some time ago, the academic world came to grips with the actions of constitutional court who made ultra petita in its decision. the previous constitutional court’s law did not sound the provisions relating to ultra petita, but with the advent of changes to the constitutional court’s law made by the house of representatives. the authority of the constitutional court expressly "prohibits" in accordance with article 45a of the constitutional court, which reads: "the decision of the constitutional court shall not contain a verdict which is not sought by the applicant or 11 supra note 2. http://journal.unnes.ac.id/sju/index.php/jils 198 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils beyond the applicant's request, except in certain cases relating to application principle." but the decision of no. 48 / puu-ix / 2011 and the decision of no. 49 / puu-ix / 2011 seem to emphasize that the "ultra petita" provision is something that "can" be done by the constitutional court. in case of ultra petita act, in fact this is almost the same form of inclusion as the islamic legal term ijtihad which means as "earnest effort" in a case, especially in the form of deciding a case. judges are obliged to explore and seek answers to a case that is not necessarily found in written law. therefore, the "ijtihad" of the judges must, explore written and unwritten laws that have a value of justice for the community. even though justice is not balanced for the parties, it can at least balance the legal orders (written and unwritten) with the needs of the community. the purpose of the legal decision itself is one of them to get justice apart from the benefits and legal certainty. internal justice is known as substantive justice and procedural justice. substantive justice is justice created by judges in their decisions based on the results of their excavation from a sense of justice in society, not only what is sounded in the law itself. examples of cases in the same act could be sentenced differently, depending on the results of the judge's excavation of a sense of justice. substantive justice (substantive justice) is often opposed to procedural justice (procedural justice), namely judges' decisions or law enforcement processes that are entirely based on sound laws.12 12 moh. mahfud md, keadilan substantif, koran sindo (2014). furthermore, mahfud md also emphasized that in terms, this substantive justice contained philosophical meaning that the judge did not have to be shackled by formal-procedural rules or the sound of the act. judges may make their own law outside the act if the existing law is inadequate or does not provide a sense of justice. this philosophical meaning can be understood, for example, from president soekarno’s statement when on july 10, 1945, stated before the bpupki session that formalitet procedures should be thrown into the garbage bin if they did not provide benefits. the attitude of the constitutional court as stated in the 2009 presidential election dispute verdict, upholding substantive justice "may" come out of the sound of unfair laws, but "not necessarily" always out of the provisions or contents of the act. as long as a sense of justice can still be found in the act, the court must enforce the contents of the act. judge, it is only permissible to leave the contents of the act if, after being dug in such a way, the sense of justice still cannot be found in it. thus, the enforcement of substantive justice opens up opportunities for judges to make their own legal verdicts outside the act in accordance with their sense of justice, while at the same time opening opportunities to enact the contents of the act as long as a sense of justice can be found. ideally, substantive justice brings together public common sense with the articles of the act and / or with the judge's conviction in deciding. see also moh. mahfud md, kelirumologi keadilan substantif, koran sindo (2014). for more comprehensive reading, please also see rahayu prasetianingsih, penafsiran konstitusi oleh mahkamah konstitusi menuju keadilan substantif. 3 jurnal konstitusi. 133, 143-147(2011); moh. mahfud m.d., peran mahkamah konstitusi dalam mengawal hak konstitusional http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 199 available online at http://journal.unnes.ac.id/sju/index.php/jils the followings are some decisions of the constitutional court. the decisions of which have been made with ultra petita. from some of the decisions below, there are tests of laws whose substance is related to the basic needs of the community economic rights, such as testing of water resources law and electricity law. a) decision of the constitutional court number 001-021-022 / puu-i / 2003 concerning judicial review of law number 20 year 2002 concerning electricity. initially the petitioner filed that article 1 letter 18, article 7, article 15 paragraph (2), article 17 paragraph (1), article 20 paragraph (1), article 32 paragraph (1), article 67 letter b of law no. 20 of 2002 contradict the 1945 constitution of the republic of indonesia. however, the constitutional court is of the opinion that the entire contents of the electricity law are contradictory to the 1945 constitution of the republic of indonesia, thus invalidating it and stating that law number 15 of 1985 concerning electricity is in effect while awaiting the formation of the law the law established a new law on electricity. b) decision of the constitutional court number 003 / puu-v / 2006 concerning judicial review of law number 31 of 1999 concerning eradication of corruption crimes as amended by law no. 20 of 2001 concerning amendment to law no. 31 of 1999 concerning eradication of corruption. the applicant submitted a review of article 2 paragraph (1), elucidation of article 2 paragraph (1), article 3, elucidation of article 3 (insofar as the word "can"), and article 15 (as long as the word "trial") is applied. in addition to the article tested by the constitutional court petitioners, it nullifies the article "unlawfully" because it is considered to be in conflict with the 1945 constitution. article against the law automatically since the verdict is read in court will automatically no longer be valid. warga negara < http://www. mahfudmd. com/public/makalah/makalah_21. pdf. > (2003); mahrus ali, mahkamah konstitusi dan penafsiran hukum yang progresif. 7 jurnal konstitusi. 67, 76-80 (2016); sulistyani eka lestari, pancasila dalam konstruksi sistem hukum nasional. 7 negara dan keadilan. 85, 87-89 (2018); achmad rubaie, dilematis hukum mahkamah konstitusi dalam perspektif putusan. 2 ajudikasi: jurnal ilmu hukum. 117, 121-123 (2018); kudrat abdillah, progresivitas hukum dalam putusan mahkamah konstitusi no. 46/puu-viii/2010. 6 jurnal yuridis. 94, 97-99 (2019); sarifudin & kudrat abdillah, putusan mahkamah konstitusi no. 46/puu-viii/2010 dalam bingkai hukum progresif." 6 jurnal yuridis. 94, 96-98 (2019). http://journal.unnes.ac.id/sju/index.php/jils 200 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils c) constitutional court decision no. 006 / puu-iv / 2006 concerning judicial review of law number 27 of 2004 concerning the truth and reconciliation commission. the petition submitted by the petitioner initially did not require this act to be canceled. the petitioner only questioned that the victims' rights would be granted if the perpetrators of human rights violations received amnesty. however, the constitutional court thought differently that by declaring the article contrary to the 1945 constitution it would automatically nullify the provisions of the truth and reconciliation comission law d) constitutional court decision no. 005 / puu-iv / 2006 concerning judicial review of law number 4 of 2004 concerning judicial power. the constitutional court's decision was initially proposed to affirm the supreme court justices and constitutional court judges from the supervision conducted by the judicial commission. it turned out that the constitutional court decided that only constitutional judges were not included in the judicial commission’s supervision object. in addition, the most controversial is to cancel article 34 paragraph (3) of the judicial power act, which means amputating the authority of the judicial commission to supervise supreme court justices and constitutional justices. although this decision received the attention of many parties, up to now the decision is still being carried out. judicial commission does not make constitutional judges the object of its supervision. e) decision of the constitutional court no. 012-016-019 / puu-iv / 2006 concerning judicial review of law no.30 of 2002 concerning the corruption eradication commission. the constitutional court decided that the existence of the corruption court is contrary to the 1945 constitution because this decision has given rise to judicial dualism. the constitutional court gave three years to legislators (dpr and the government) to form a new corruption court law. the new law must regulate the corruption court as the only justice system for criminal acts of corruption. this decision ordered the establishment of the corruption court law until the deadline of december 19, 2009, which had been implemented by the government and the parliament by passing law no. 46 of 2009 concerning the corruption court on october 29, 2009. the law contributed the corruption court the http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 201 available online at http://journal.unnes.ac.id/sju/index.php/jils authority to adjudicate corruption cases and be part of the indonesian justice system. f) decision of the constitutional court no. 28 / puu-xi / 2013 concerning testing law no. 17 of 2012 concerning cooperatives. the applicant submits a review of article 1 number 1, article 50 paragraph (1), article 5 paragraph (1), article 56 paragraph (1), article 66, article 67, article 68, article 69, article 70, article 71, article 72, article 73, article 74, article, 75, article 76, article 77, article 80, article 82, and article 83 of law number 17 of 2012 concerning cooperatives. however, the constitutional court is of the opinion that because article 1 contradicts the 1945 constitution of the republic of indonesia, the constitutional court states that this cooperative law does not apply to all. g) constitutional court decree no. 85 / puu-xi / 2013 on law no. 7 of 2004 on water resources. the case piled by the muhammadiyah national leaders was initially the application for law no. 7 of 2004 only to be specific to: article 5; article 6; article 7; article 8; article 9; article 10; article 26; article 29 paragraph (2) and paragraph (5); article 45; article 46; article 48 paragraph (1); article 49 paragraph (1); article 80; article 91; and article 92 paragraph (1), paragraph (2) and paragraph (3). however, during the preliminary hearing, the judge advised that muhammadiyah national leaders as the applicant could request that the entire article of law no. 7 of 2004 be cancelled or repealed, so that in the revision of the application of the muhammadiyah national leaders, one of the points requesting repeal of the no. 7 law of 2004 to fill the vacancy of the law was re-enacted law no. 11 of 1974 on irrigation. i. ultra petita in electricity law the reason for submitting an examination of the electricity law which was eventually terminated by the ultra petita as the law on water resources, is because the electricity law contradicts article 33 of the 1945 constitution. it has encouraged the privatization of electricity as an important branch of production and controls the livelihoods of many people, which should be controlled by the state, as the constitutional court's decision is the people http://journal.unnes.ac.id/sju/index.php/jils 202 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils themselves, is actually more beneficial for certain private parties, groups or business entities. article tested is article 1 letter 18, article 7, article 15 paragraph (2), article 17 paragraph (1), article 20 paragraph (1), article 32 paragraph (1), article 67 letter b of law no. 20 of 2002, which was considered contrary to the 1945 constitution. in the constitutional court's decision, the court actually canceled the entire contents of the electricity law. as for the considerations of the constitutional court assemblies, which in principle are: a) electric power is an important branch of production for the state and which controls the livelihoods of many people as article 33 paragraph (2), so that the true branch of electricity production must be controlled by the state for the prosperity of the people of indonesia. b) the provisions deemed contrary to the constitution are basically article 16, 17 paragraph (3), as well as article 68, especially those relating to unbundling and competition, but because these articles are at the heart of law number 20 of 2002 which is the entire paradigm the underlying law for electricity is competition or competition in management with an unbundling system in electricity. this is in fact not in accordance with the soul and spirit of article 33 paragraph (2) of the 1945 constitution which is the basic norm of the indonesian national economy. c) the reality of state-owned enterprises’ (bumn) inefficiency arising from factors of miss-management and corruption, collusion and nepotism, cannot be used as a reason to ignore article 33 of the 1945 constitution, like the saying "ugly face breaks the mirror". corrections must be made to strengthen state control in order to carry out its constitutional obligations as referred to in article 33 of the 1945 constitution. d) the production branch in article 33 paragraph (2) of the 1945 constitution in the electricity sector must be interpreted as a unity between the generator, transmission, and distribution even though only certain articles, paragraphs, or parts of paragraphs in the a quo law are it was stated that it did not have binding legal force but this resulted in law no. 22 of 2002 as a whole not being able to be maintained, because it would cause chaos and legal uncertainty in its application. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 203 available online at http://journal.unnes.ac.id/sju/index.php/jils ii. ultra petita in water resources law the testing of water resources law by the muhammadiyah organization and several other factions is only justified in article 5; article 6; article 7; article 8; article 9; article 10; article 26; article 29 paragraph (2) and paragraph (5); article 45; article 46; article 48 paragraph (1); article 49 paragraph (1); article 80; article 91; and article 92 paragraph (1), paragraph (2) and paragraph (3) only. but the decision of constitutional court instead invalidated the whole law. this is done by preceding the application for the applicant to seek a complete revocation of the water resources law upon the panel of juries’ legal opinion. the reason for the submission of the law is because the water resources law does not provide clear water management limits to the private sector resulting in uncertainty in the implementation of the water resources law. in addition, the application of the act opens the opportunity for privatization and commercialization of the private sector for the management of water resources that harms the community as water users. this is exacerbated by the existence of government regulations, article 1 number 9 government regulation number 16 of 2005 concerning the development of drinking water supply systems (spam) which states that the spam development providers are state-owned enterprises (bumn), cooperatives, private business entities, or community groups. on the other hand, article 40 paragraph (2) of the water resources law has stated that the development of spam is the responsibility of the central government / local government. these conditions make regulations related to natural resources, especially the basic needs of the people, which in this case relate to the economic rights of the indonesian people are increasingly eroded by the need for privatization rather than paying attention to the needs of the people. meanwhile, as the constitution has firmly affirmed as article 33 of the 1945 constitution that: 1) the economy is structured as a joint effort based on family principles. 2) production branches which are important for the state and which control the livelihoods of the public are controlled by the state. http://journal.unnes.ac.id/sju/index.php/jils 204 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils 3) the earth and water and the natural resources contained therein shall be controlled by the state and used for the greatest prosperity of the people. 4) the national economy shall be implemented based on economic democracy with the principles of togetherness, fair efficiency, sustainability, environmental insight, independence, and by maintaining a balance of progress and national economic unity. 5) further provisions regarding the implementation of this article are regulated in the law. ultra petita in progressive and responsive theory the form of application of ultra petita is a form of application of legal decisions that cannot be separated from progressive and responsive theories. ultra petita will only emerge when the paradigm used is to respond quickly to the needs of the community which could be those needs are not written on paper in the legislation. progressive theory by satjipto raharjo, which was the first to spark the idea of progressive law. satjipto rahardjo offers a new perspective, spirit, and way of overcoming "legal paralysis" in indonesia. progressive is derived from the word progress, which means progress. law should be able to keep up with the times, be able to respond to changing times with all the basics in it and be able to serve the community by relying on the morality aspect of law enforcement human resources. satjipto rahardjo then concluded that one of the causes of the decline in the performance and quality of law enforcement in indonesia is the dominance of the positivism paradigm with the inherent nature of formality. in other words, law exists in human society, in every society there is always a legal system, there is a community there is a law: yam societasibi jus.13 13 sudikno mertokusumo, mengenal hukum: suatu pengantar 34-41 (2013). the progressive legal paradigm initiated by the legal expert prof. dr. satjipto rahardjo is a phenomenal idea aimed at law enforcement officials, especially to the judge so as not to be shackled by legal positivism which has been giving a lot of injustice to yustisiabelenn (justice seekers) in upholding the law because law enforcement is a series of processes to describe values, ideas , a pretty abstract mind which is the goal of law. legal goals or legal ideals start moral values, such as justice and truth. these values must be able to be realized in real reality. the existence of law is recognized if the moral values contained in the law are able to be implemented or not. according to soerjono soekanto, conceptually the core of the meaning of law enforcement lies in the activity of harmonizing the relationships of values that are spelled out in solid rules and http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 205 available online at http://journal.unnes.ac.id/sju/index.php/jils progressive law offers another way that is different from the main mindstream of the law in indonesia. honesty and sincerity become the crown of law enforcement. empathy, care and dedication to bring justice, become the spirit of law enforcement. human interests (welfare and happiness) become the point of orientation and the ultimate goal of law. law enforcers are at the forefront of change. facing a rule, even though the rule is not aspirational for example, progressive law enforcement officials do not have to dismiss the existence of that rule. he can every time make a new interpretation of these rules to provide justice and happiness to justice seekers.14 apart from the progressive theory which is the basis of the judge's thinking in conducting ultra petita, there are also other theories, namely responsive as a theory that is in line with the previous progressives. both theories are considered to be two theories that are at odds with the positivism theory. between progressive responsiveness and positivism theory often has a basis, goals and ways of working that are not in line. so naturally when these two streams are met, they are unable to solve the problem except by using a voting system. responsive law is a theory initiated by selznick in the midst of scathing criticism of liberal legism. in fact, liberal legalism presupposes law as an independent institution with an objective, impartial and truly autonomous system of rules and procedures. actually, behind the doctrine of legal autonomy, there is a hidden ideology of the status quo. and the status quo is a bastion of protection for established people, the rich people. in the midst manifesting the attitude of action as a series of translation of the final stage of values, to create, preserve and maintain peaceful social relations. furthermore, it is also emphasized that law enforcement as a means to achieve legal objectives, then all energy should be mobilized so that the law is able to work to realize moral values in law. the failure of the law to realize the value of the law is a threat to the dangers of existing laws. poor law implementation of moral values will be distant and isolated from the community. the success of law enforcement will determine and become a barometer of legal legitimacy amidst social reality. see also satjipto rahardjo, hukum progresif: sebuah sintesa hukum indonesia 112-123 (2009); satjipto rahardjo, membedah hukum progresif 34-41 (2010); satjipto rahardjo, hukum progresif: hukum yang membebaskan. 1 jurnal hukum progresif. 1, 15-19 (2005); sudijono sasatroatmodjo, konfigurasi hukum progresif. 8 jurnal ilmu hukum. 185, 19—197 (2005); a sukris sarmadi, membebaskan postivisme hukum ke ranah hukum progresif (studi pembacaan teks hukum bagi penegak hukum). 12 jurnal dinamika hukum. 331, 338-340 (2012); m. syamsudin, konstruksi baru budaya hukum haki m berbasis hukum progresif 55-60 (2011); dey ravena, wacana konsep hukum progresif dalam penegakan hukum di indonesia. 23 jurnal wawasan yuridika. 155, 160-163 (2014). 14 sudijono sastroatmodjo, konfigurasi hukum progresif, id. http://journal.unnes.ac.id/sju/index.php/jils 206 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils of criticism of the reality of the legal authority crisis, nonet-selznick proposed a responsive law. social change and social justice require a responsive legal order. this need has become the main theme of all experts who agree with a functional, pragmatic, and purposive spirit (goal oriented).15 therefore, the two theories that are used as a foothold in making ultra petita decisions, are considered appropriate in answering legal issues that are too rigid and have not been able to answer the needs and protect the basic rights of the community, especially in matters of economic rights. progressive and responsive theories seem to be a breath of fresh air in the world of law, even when laws are unable to provide a sense of justice. the application of laws related to basic economic needs is full of gaps that are not easy to fix and put on trial. so that the courage of the court in using the two theories above seemed to emphasize that the law is what is in society, not what is ordered by the law itself. 15 in the concept of law, philippe nonet and philip selznick distinguish three types of law, namely repressive law, autonomous law, and responsive law. the emphasis of the concept of law proposed by nonet and selznick is the aspect of jurisprudence and social sciences based on sociological jurisprudence. there is a responsive legal level, the purpose of the law to be achieved is competence. from the perspective of responsive law, good law should offer something more than just procedural justice. good law must be competent and also fair, able to recognize the wishes of the public and be committed to achieving substantive justice. responsive law is a law that reflects a sense of justice and meets the expectations of the community. in the process of making responsive legal products, social groups or individuals in society are given a large role and full participation. the results of this process are legal products that are responsive to all interests, both the community and the government. prominent characteristics of the concept of responsive law are the shifting of rules from the rules to the principles and objectives, and the importance of democracy both as a goal and a way to achieve it. according to satjcipto rahardjo, responsive law is a law that is more sensitive to the community in an effort to realize legal certainty, legal protection, and internal justice. see philippe nonet, philip selznick, & robert a. kagan. law and society in transition: toward responsive law 67-70 (2017); nonet philippe & philip selznick, law and society in transition: toward responsive law 115-120 (1978); nonet philippe & philip selznick, toward responsive law: law and society in transition, 67-74 (2001); sabian utsman, menuju penegakan hukum responsif: konsep philippe nonet & philip selznick: perbandingan civil law system & common law system, spiral kekerasan & penegakan hukum, 43-51 (2008); li han, responding to the society, leap of the legal reform: from repression to response: review on law and society in transition: toward responsive law. 2 tribune of political science and law. 15, 16-17 (2018); ahmadi, kontroversi penerapan hukum: telaah sintesa hukum represif, hukum otonom dan hukum responsif. 9 al'adl. 1, 10-13 (2018); wimmy haliim, demokrasi deliberatif indonesia: konsep partisipasi masyarakat dalam membentuk demokrasi dan hukum yang responsif. 42 masyarakat indonesia. 19, 23-25 (2016). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 207 available online at http://journal.unnes.ac.id/sju/index.php/jils the protection of basic rights of people by ultra petita decisions i. constitutional court’s ultra petita on protecting economic rights ultra petita in the world of constitutional law is basically not very well known, in fact, the prohibition is only in the scope of civil proceedings. the ultra petita prohibition is regulated in article 178 paragraph (2) and (3) of the het herziene indonesisch reglement (hir) as well as in article 189 paragraph (2) and (3) rbg which prohibits a judge from making decisions beyond what is demanded (petitum). in civil law, ultra petita decisions are considered as an act that exceeds the authority because the judge decides not in accordance with what is requested (petitum). whereas in the sphere of constitutional law it requires a long debate and discussion because the constitutional court is a court that has a direct impact on the entire community. civil procedural law applies the principle of a judge being passive or a judge is waiting. in the trial the judge is not allowed to take the initiative to make changes or reductions, although it is reasonable for the sake of a sense of justice. the decision was still not justified in the corridor of civil procedural law. judges' decisions are basically determined by litigants. the judge only considers matters raised by the parties and lawsuits based on them (iudex non ultra petita or ultra petita non cognoscitur). the judge only determines whether there are things that are submitted and proven by the petitioners or the plaintiff.16 the ultra petita of the constitutional court was a pro and contra as if it were a debate over the enforcement of substantive justice and procedural justice as discussed previously. even so, this does not mean that the ultra petita is weak in terms of basis and purpose. therefore, below the importance of ultra petita in the constitutional court will be explained below: 16 yahya harahap, hukum acara perddata 37-40 (2016). http://journal.unnes.ac.id/sju/index.php/jils 208 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils a) the constitutional court in making ultra petita decisions related to judicial review of laws against the constitution whose decisions exceed what is requested. according to yahya harahap, if a judge violates the principle of ultra petita, then it is the same as a violation of the rule of law principle. it seems these conditions are not entirely correct. because indonesia uses a rechstaat system not a rule of law. moreover, the difference in principle between rechstaat and rule of law one of which lies in the existence of an administrative justice system in the rechstaat legal system. b) the need for a trial in the constitutional court is different from the need for a trial in an ordinary court. this can be seen from the impact of a decision. the opinion above may be for civil cases whose decisions are binding only for litigants. whereas in the constitutional court the decision is binding for the whole community (erga omnes). the authority to examine the laws possessed by the constitutional court is public, even if the submission can come from each individual. then the erga omnes decision cannot make decision that only thinks of the loss of one person or group alone, but the constitutional court's decision must be able to assess how the impact of the decision for all indonesian people. c) one of the principles in the procedural law applicable in indonesia is that judges are prohibited from rejecting a case. judges are required to explore legal values and a sense of justice that lives in society. article 5 paragraph (1) of law no. 48 of 2009 concerning judicial power states that: "judges and constitutional judges must explore, follow, and understand the legal values and a sense of justice that lives in society". judge according to the law in accordance with the indonesian state of law, not only in written regulations, but also in unwritten law as previously explained. judges are not merely "mouthpieces of law", more than that judges must find a law (rechtsvinding) that is considered fair. so when the law (written law) is not able to answer the needs of the community, the judge must be able to find other laws that can answer the needs of justice seekers. in the case of judges using various perspectives on different theories and paradigms, this is normal in the academic world. even the state administration debate is the first debate in the formation of a state and will http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 209 available online at http://journal.unnes.ac.id/sju/index.php/jils never be completed to find an ideal state. whereas related to the courage of the court in making decisions with the ultra petita in fact has a significant legal impact in the life of the state. just a simple description, when testing the law on water resources and the law on electricity, if regulations still firmly "prohibit" decisions beyond what is requested, then what happens is that the application of the two laws becomes "commercial" and multiple interpretations in norms, so that the application is vulnerable to be misused for the benefit of individuals and groups on the produce contained in the two laws. ii. ultra petita economic rights in the form of pancasila justice the constitution in the republic of indonesia is a written constitution called the 1945 constitution. the 1945 constitution can be seen as its body, while pancasila is its spirit. therefore, the 1945 constitution cannot be understood separately or outside the context of its spirit, namely pancasila. conversely, pancasila also cannot be seen to stand alone but must be read and understood in the context of the constitutional norm system which is its body, namely the norms of the 1945 constitution.17 pancasila as staatfilosofie or weltanschauung and lebenanschauung; then as an ideology that is as a set of ideas (a series of ideals and ideas). after becoming an ideology, pancasila was again deposited as the basis of the state as an implementation of its ideals and ideas and implemented by state politics as a legal basis. in its implementation, the redefinition, reinterpretation and revitalization of pancasila values are unavoidable. the position of the pancasila as staatfilosofie or weltanschauung, and lebenanschauung, ideology and the legal basis continue to experience changes through the practice of state politics or the behavior of its people. the different positions of pancasila prove that pancasila has an important role in the socio-historical practice of the indonesian people.18 pancasila as stated by sukarno was excavated in the original culture of the indonesian people. after from the beginning of his speech on june 1, 1945, sukarno explained that the view of 17 supra note 1. 18 bello petrus, ideologi hukum refleksi filsafat atas ideologi di balik hukum 33-46 (2013) http://journal.unnes.ac.id/sju/index.php/jils 210 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils life that he was promoting came from the indonesian people themselves. in his speech on august 17, 1945 he explained this: "what all the fuss about the day was simply mefermuleer the feelings that exist among the people with a few words, just called pantja sila .... just digging in indonesian soil and getting five diamonds… i was digging in indonesian folklore, and i saw in it that indonesian people live in five senses… indonesian people since ancient times ... in the customary world, the rights of ownership are limited by the spirit of mutual help, sacrifice and ethnicity. there appears to be a spirit of social justice that mediates the division of land that is democratically governed by treason. a peaceful life… ”19 soekarno said that pancasila was excavated in the native culture of the nation. whereas culture is something that is essentially growing and rich. not to mention the understanding of the plurality of cultures that develop in indonesia is based more on presuppositions rather than the certainty of the meaning of culture. the word itself is a puzzle that is not so easy to get the same understanding or understanding. it is assumed that everyone belongs to a certain society with a certain culture. furthermore, each person has a different background, way of thinking, focus of attention and interest, so it is easy to understand that the formulation and understanding of "culture" also differ from one another, according to their respective perspectives.20 this makes it easier for us to understand the position of the pancasila in the life of the indonesian people, which is not static and standard, but dynamic. because pancasila was excavated from indonesian earth, then naturally it was the work of humans who dug it up. and that digging activity is an active and continuous process as long as the world and the earth still exists. the digging done will never finish or end. pancasila is a human work intended for humans, born from the labors of human history, for that pancasila is not ready to use. he did not reject the creative interpretation. he opened the possibility of not becoming dogma. because it was born from the labors of human history, pancasila as 19 id. 20 id http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 211 available online at http://journal.unnes.ac.id/sju/index.php/jils weltanschauung, a worldview and life or a philosophical basis, sukarno called it "philosophische gronslag" of course he was not the impermeable, solid already final and eternal and perfect, thus eliminating the possibility of a "understanding" break through and take over "that basic philosophy". in other word pancasila is not something magic, pancasila actually means meaningful because it is not magic. pancasila comprises of five (5) principles, namely; (1) belief in the one and only god (2) a just and civilized humanity (3) a unified indonesia (4) democracy, led by the wisdom of the representatives of the people (5) social justice for all indonesians based on the goals and ideals of the state as in the sound of pancasila above, the ultra petita of the constitutional court related to economic rights as has been done in the water resources law and the electricity law, the true form of the constitutional court's decision has reaffirmed the pancasila state goal in the fifth principle: "social justice for all indonesian people". this is because electricity law and the previous water resources law both have commercialization norms rather than the welfare of the people. in addition, the two laws also do not have the power of legal certainty, so that in their application they cause conflicts of interest from various parties. so, as to stop this, the two laws were decided by ultra petita, namely by cancelling the entire contents of the two laws. while related to the constitutional basis of state control as article 33 of the 1945 constitution stated in paragraph (3) concerning the meaning of "state control rights". interpreted as the people's right by giving a mandate to the state to make policies (regulations) and management actions (bestuursdaad), regulation (regelendaad), management (beheersdaad), and supervision (toezichthoudensdaad) for the ultimate purpose of prosperity of the people. the fifth principle which serves as one of the grounds in the governance of state life, especially in this case in the implementation of basic economic needs, must be understood that "fair" in the decision is not necessarily able to meet the desires of the parties. the word justice or justice itself, comes from arabic, the word 'al-adl' (fair) which literally means "straight", "balanced", justice means treating everyone with the principle of equal http://journal.unnes.ac.id/sju/index.php/jils 212 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils liberty, without discrimination based on subjective feelings, differences in ancestry, religion, and social status.21 in islam justice or justice is also a duty of humanity, the form of the command of allah swt as in the qur'an can be found in several chapters (surah) in the qur'an, such as; an-nisa verse 58, an-nisa verse 135, assyuraa verse 15, al-maidah verse 8 and so on. as stated in the letter an-nisa verse 58 it is said that: “indeed, allah commands you to render trusts to whom they are due and when you judge between people to judge with justice. excellent is that which allah instructs you. indeed, allah is ever hearing and seeing”. the conception of islamic justice according to qodri has a deeper meaning than what is called distributive justice and aristotle's final and distributive justice. formal justice of roman law or other human conceptions of law made by other people. it penetrated into the innermost being of man, because everyone must do in the name of god as a place where everything starts from motivation and action. the implementation of justice in islam is based on the quran and the sovereignty of the people or muslim community, namely the ummah.22 21 yudi latif, negara paripurna: historitas, rasionalitas, dan aktualitas pancasila 67-74 (2011). in his book, yudi latif emphasized that pancasila should be used as a principle of human civilization and the indonesian people. various actions and behaviors that are very much in conflict with the precepts of humanitarianism should not color the policies and behavior of the state apparatus in public life. violence, poverty, injustice, and the happiness of life is a reality that is truly challenged with a sense of justice and humanity, and therefore must be eliminated from the life of the nation. for comparison and comprehensive picture, also see muhammad chairul huda, relasi islam dan negara (studi politik hukum di indonesia). 6 pax humana. 154, 160-164 (2020); sarip & abdul wahid, kemajemukan visi negara hukum pancasila dalam misi hukum negara indonesia. 2 refleksi hukum: jurnal ilmu hukum. 109, 114-117 (2018); otong rosadi, ide bernegara dalam konstitusi indonesia: rekonstruksi undang-undang dasar negara republik indonesia tahun 1945 pasca amandemen. 1 pagaruyuang law journal. 277, 280-284 (2018); nurul huda & khudzaifah dimyati, base transcedental value on judge’s decision (study of basic perspective of pancasila state). 18 jurnal dinamika hukum. 139, 140-143 (2018); faisal ismail, religion, state, and ideology in indonesia: a historical account of the acceptance of pancasila as the basis of indonesian state. 1 indonesian journal of interdisciplinary islamic studies (ijiis). 19, 31-37 (2018). 22 a.a. qodri, sebuah potret teori dan praktek keadilam dalam sejarah pemerintahan muslim 113-116 (1987). etymologically justice is defined as meaning that it is not biased or can be settled and put things or laws correctly, correctly, and in accordance with their place. justice can also be interpreted as an act or treatment that is balanced and in accordance with the provisions, does not justify the wrong and does not blame the right, even http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 213 available online at http://journal.unnes.ac.id/sju/index.php/jils furthermore, in the same context, kaelan emphasized that in living together both in society, nation and state must be realized a justice (social justice)23, which includes three things: a) distributive justice (justice divides), namely the state of its citizens b) legal justice, which is citizens' right to their country to obey the laws and regulations c) commutative justice (justice among fellow citizens), namely the reciprocal relationship of justice between citizens. gunawan & kristian also highlighted that pancasila as an ideal foundation, basic foundation or fundamental foundation for the formation of the entire legal system in the republic of indonesia (the legal system in a broad sense which includes legal values, legal concepts, legal institutions and legal norms).24 in general, it can be explained in each of the pancasila principles, but the author only takes the definition as in the fifth principle. the fifth principle: "social justice for all indonesian people" is that the implementation of the legal system in indonesia must be carried out in a balanced and proportionate manner by paying attention to the principle of prosperity so that the legal system in the republic of indonesia is always stated on the objectives to be achieved namely to achieve justice, benefit and others so forth, so that it will create a condition that is conducive to national development and ultimately can create the protection and welfare of the community. though it must face certain consequences. whereas in terms of justice, it is defined as all forms of actions, decisions and fair treatment, including: (1) not exceeding or even reducing from what is appropriate and reasonable; (2) is impartial and gives a one-sided or mild decision; (3) according to capacity and ability, level or position and expertise; (4) holding fast to the truth; and (5) is not arbitrary. for further comparison, please see hossein askari & abbas mirakhor, “introduction and summary of the conception of justice in islam." conceptions of justice from islam to the present 1-16 (2020); shadaab rahemtulla, qur'an of the oppressed: liberation theology and gender justice in islam 45-63 (2017); adnan a. musallam, sayyid qutb: the emergence of an islamist calling for social justice in islam, 1906–1948. 42 journal of south asian and middle eastern studies. 1, 15-17 (2018); hossein askari & abbas mirakhor, “conception of justice in the age of enlightenment”, conceptions of justice from islam to the present 33-130 (2020); hossein askari & abbas mirakhor, “conception of justice from rawls to sen to the present”, conceptions of justice from islam to the present 155-183 (2020); lawrence rosen, islam and the rule of justice: image and reality in muslim law and culture 7884 (2018). 23 kaelan, liberalisasi ideologi negara pancasila 65-67 (2015). 24 yopi gunawan & kristian, perkembangan konsep negara hukum dan negara hukum pancasila 66-69 (2015). http://journal.unnes.ac.id/sju/index.php/jils 214 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils aside from the opinions of the experts above about social justice, there is a theory of social justice put forward by mohammad hashim kamali as quoted by kaelan.25 that humans work together to realize equality, like aristotle, kamali considered that justice in a condition where one cannot be said without the other, justice cannot be realized without equality and equality is impossible without justice. one of the principles of justice initiated by kamali is social justice, where people in a country work together to create an equal situation. this equality is based on the principle of justice as an individual right, only to become part of the social. my principle of justice, one of them is social justice. for me, the primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation.26 according to kamali the idea of social justice is to prioritize the individual, so that individual rights cannot be subdued by the social. this becomes the legal basis for the state, so that the state of society can be called fair. justice does not justify sacrificing the interests of a person or group of people in the interest of the public. thus, the conception of justice must be able to guarantee that every citizen has something that cannot be erased, which is rooted in justice that even the welfare of society as a whole should not displace it. kamali focuses justice on the freedom and equality of each individual in society. he gave birth to the conception of substantive justice which became the basic structure of society, namely the way how social institutions distribute fundamental rights and obligations and determine the distribution of benefits and burdens from social cooperation. in other words, the distribution is in accordance with the agreement of the individuals involved, so that the value of justice obtained by each individual is not harmed through the distribution process. thus, equality achieved can 25 supra note 23, at 90-94. 26 id. at 96 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 215 available online at http://journal.unnes.ac.id/sju/index.php/jils be mutually beneficial to individuals who are lucky and who are not fortunate.27 substantive justice in the black's law dictionary 7th edition is interpreted as; justice fairly administered according to rules of substantive law, regardless of any procedural errors not affecting the litigant's substantive rights. (justice is provided in accordance with the rules of substantive law, without regard to procedural errors that have no effect on the plaintiff's substantive rights). this means that what is formally procedurally correct can be blamed materially and its substance violates justice. from kamali's opinion on the operation of social justice in a country above, it is considered in line with the opinion of its predecessor, john rowls, that social justice must be fought for two things28, namely: a) making corrections and improvements to the conditions of inequality experienced by the weak by presenting empowering social, economic and political institutions 27 see maheen zaman, book reviews-mohammad hashim kamali. the middle path of moderation in islam: the qur'anic principle of wasatiyyah. oxford: oxford university press, 2015. pp. xi+ 320. hardcover. isbn: 978-019-022683-1. 56 islamic studies. 151, 152-153 (2017); mohammad hashim kamali, shariah law 116-124 (2017); mohammad hashim kamali, reading the signs: a qur’anic perspective on thinking 45-53 (2018); mohammad hashim kamali, classical islamic political thought and its contemporary relevance. 9 islam and civilisational renewal icr journal. 19, 17-24 (2018); mohammad hashim kamali, peace in the islamic tradition: one vision, multiple pathways. 7 islam and civilisational renewal icr journal. 115, 118-120 (2016). 28 jhon rawls, theory of justice 276-280 (1973). according to rawls, the most fundamental principle of justice is that everyone has the same rights from their natural positions. therefore, for justice to be achieved the structure of the political, economic, and regulatory constitution regarding property rights must be the same for all people. such a situation is called a "veil of ignorance", where everyone must put aside the attributes that distinguish them from other people, such as abilities, wealth, social position, religious and philosophical views, and conceptions of values. to establish this fair situation there needs to be a guarantee of a number of basic rights that apply to all, such as freedom of opinion, freedom of thought, freedom of association, freedom of politics, and freedom before the law. basically, rawls's theory of justice wants to overcome two things, namely utilitarianism and resolve the controversy regarding the dilemma between liberty and equality which has been considered impossible to put together. rawls explicitly positioned his theory to deal with utilitarianism, which since the mid-19th century dominated the normative political-liberal thinking of liberalism. see also william a. edmundson, john rawls: reticent socialist 66-69 (2017); frank i. michelman, constitution (written or unwritten): legitimacy and legality in the thought of john rawls. 31 ratio juris. 379, 385-386 (2018); brian coyne & rob reich. “john rawls.” international handbook of philosophy of education 385-394 (2018); dennis f. thompson, “john rawls, political liberalism.” oxford handbooks online (2018). http://journal.unnes.ac.id/sju/index.php/jils 216 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils b) every rule must position itself as a guide to develop policies to correct injustices experienced by the weak john rawls's opinion above illustrates that the enforcement of social justice ultimately leads to law enforcement, it aims for the sake of justice for all people. justice itself will be reflected if institutions from various fields are running well, and the law stands not merely as a sanction but rather on the giver of limits and direction whether it is considered good or not. social justice according to john rawls about well-ordered society refers to the structure of a society that is socially just. as for social justice, in the end it is not just that all the same or equal freedoms of each person are protected, but especially also that basic freedoms are effectively carried out by all parties in the society concerned, to the extent that the comfort of the atmosphere of freedom feels maximum for the worst off (those who are less fortunate).29 meanwhile, the worst off that john rawls meant was that they were the poorest among us, in terms related to certain primary social goods resources, especially income and wealth. in this connection, they need not be unhappy, from the point of view of the welfarist or physically or mentally incapable, but john rawls also uses other terms to refer to these poor or poor people. the term is the least (social and economic) advantaged. according to him, the term refers to the class of society with the simplest place and distribution of income and wealth. this is in line with the principles of social justice expressed by kamali,30 namely: a) everyone has the same right to the whole of the broadest system of fundamental freedoms according to the same system of liberty for all. b) social and economic inequality are regulated in such a way that both provide the greatest benefits to the most disadvantaged and open positions and positions for all under conditions of equal opportunity. both pancasila and the 1945 constitution have a paradigm of protection of economic rights with the aim of welfare for all indonesian people. so that the "deeds" of the ultra petita's decision by the constitutional court, even though it is not clearly permitted or prohibited by a written regulation, these conditions force the court to look for other unwritten laws in people's lives in order to obtain the value of justice to them as the theory of justice . 29 supra note 23. 30 supra note 27, with all accompanying texts. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 217 available online at http://journal.unnes.ac.id/sju/index.php/jils conclusion this study concluded that the decision of the ultra petita constitutional court is as one of the efforts of the judiciary to protect the economic rights of the indonesian people as the sound of pancasila and the 1945 constitution. as in the electricity law and the law on water resources, both decisions have proven that the ultra petita is one of the steps of the ijtihad panel of judges of the constitutional court in exploring the values of justice that may not be found in written law, so that the panel must be more progressive responsive in seeing problems in the field. the panel of judges as a breaker cannot only read what is written in the law itself. the law has not been able to answer all the needs and developments of the times. in addition, the state of indonesia is one of the countries by adopting a mixed legal system, the law is not only safe in the law alone, even what is believed and respected by citizens must be interpreted in a decision solely for the sake of seeking substantive justice. the constitutional court's verdict is erga omnes's decision, that is, the verdict is not only submitted by the petitioner, but also affects all the people of indonesia. so that the interpretation of justice that is often requested by one party is not merely seen as the needs of those who request it. beyond the justice of the constitutional court, the same justice is also expected by all indonesian people. so it is not an easy task for the constitutional court to decide. it takes a variety of legal paradigms to be able to give a fair decision, especially related to the lives of many people. suggestion this study suggest that is the need for the wisdom of legislators to make laws by paying more attention to and even prioritizing the basic rights of indonesian citizens, especially the constitutional rights that have been sounded in the provisions of the 1945 constitution. constitutionalism rights must be able to be interpreted by the legislator. therefore, in the ius contituendum paradigm equality is needed the values of constitutional rights in the 1945 constitution, so that in the future there will be no longer found norms of law that are multiple interpretations and ignores the basic needs of http://journal.unnes.ac.id/sju/index.php/jils 218 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils the indonesian people, which should take precedence as mandated by article 33 of the 1945 constitution. references a.a.qodri. 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(2018). empat pilar kehidupan berbangsa dan bernegara sebagai panduan dalam mewujudkan masyarakat adil makmur berdasarkan pancasila. likhitaprajna 15(1), 37-52. weatherbee, d.e. (1985). indonesia in 1984: pancasila, politics, and power. asian survey 25(2), 187-197. weber, m. (2009). from max weber: essays in sociology. london: routledge. whimster, s. (ed.). (2016). max weber and the culture of anarchy. london: springer. yahya harahap. (2016.). hukum acara perdata. jakarta: sinar grafika. yudi latif. (2011). negara paripurna: historisitas, rasionalitas dan aktualitas pancasila. jakarta: gramedia pustaka utama. zainal, a. (2012). penelitian pendidikan metode dan paradigma baru. bandung: rosdakarya. zaman, m. (2017). book reviews-mohammad hashim kamali. the middle path of moderation in islam: the qur'anic principle of wasatiyyah. oxford: oxford university press, 2015. pp. xi+320. hardcover. isbn: 978-0-19-022683-1. islamic studies 56(1-2), 151-155. about authors emy hajar abra is a lecturer at faculty of law universitas riau kepulauan, batam, indonesia. her research interests are concerning to constitutional law, as well as constitutional court decision. she has been involved in many research projects concerning to constitutional law and various related subjects on legal studies. rofi wahanisa is a lecturer at faculty of law, universitas negeri semarang, indonesia. she interested in some area of legal studies, such as natural resources law, politics of natural resources, state administrative law, and agrarian law. besides as lecturer and researcher, she also working as director of international cooperation unit at faculty of law universitas negeri semarang. http://journal.unnes.ac.id/sju/index.php/jils attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23958e12206d • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect 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1 issue 01, 2016 volume 1 issue 01 november 2016 jils 1 (1) 2016, pp. 47-68 issn 2548-1584 e-issn 2548-1592 ultra petita decision of constitutional court on judicial review (the perspective of progressive law) hery abduh sasmito 1 hery abduh sasmito legal practitioner, judge at administrative court in denpasar bali jl. kapt cokorde agung tresna no.4, dangin puri klod, denpasar, bali 80234, indonesia  heryabduhs@gmail.com article info abstract submitted on may 2016 approved on august 2016 published on november 2016 this research come up from the premise that in the execution of their duties during this time, the constitutional court issued many decisions by some legal experts considered break the limits of his authority. one is on a judicial review which contains ultra petita decisions. regarding to that condition, some parties considered that the court has acted as an institution that is authoritarian and violated its authority, but on the other hand, the court instead declared itself as the guardian of democracy and substantive justice. author argued that, the prohibition to use a doctrine of ultra petita for judge was not generally applicable. through normative approach and systematic interpretation said that on law concerning to constitutional court (mk, mahkamah konstitusi) or other mk decisions did not give any possibilities for judge to make an ultra petita decision. keywords: ultra petita, judicial review, progressive law, constitutional court 1 s.h., universitas negeri semarang, m.h., universitas diponegoro. special thanks prof. abdul dr. yos johan s.h., m.hum, as my thesis supervisor for many valuable comments, and to all staff administrative court of denpasar and pontianak, to indonesian constitutional court i am also personally express my thankfulness, and also to editorial boards of journal of indonesian legal studies (jils), faculty of law universitas negeri semarang. mailto:heryabduhs@gmail.com 48 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils hery abduh sasmito jils i (1) november 2016, 47-68 introduction the constitutional court plays an important position in the indonesian state system. the establishment of the constitutional court is intended to resolve some cases that are closely related to the constitutionality of state administration and constitutional issues in indonesia. in article 2 of law no. 24 of 2003 regarding the constitutional court stated that ―the constitutional court is one of the state institutions that conduct independent judicial power to organize judicial administration to uphold law and justice‖. the constitutional court has the equal position with other state institutions—the supreme court. according to section 24c of the 1945 constitution jo. article 10 of law number 24 of 2003 concerning the constitutional court (mk act), the constitutional court as a state institution of judicial power holders have four authorities and one obligation, namely: 2 1. examine the laws against the constitution of the republic of indonesia of 1945; 2. resolve the authority dispute between state institutions the authority granted by the constitution of 1945; 3. dissolution of political parties; and 4. decide disputes concerning the results of the general election; and 5. obligation to give a decision on the opinion of the house of representatives that the president and/or vice president is alleged to have violated the law in the form of treason, corruption, bribery, other felonies, or misconduct, and/or no longer qualifies as president and/or vice president as defined in the constitution of the republic of indonesia of 1945. the presence of mk has a lot to contribute to the restructuring of our constitutional system and the law. 3 the constitutional court only has nine constitutional court judges deemed high productivity. in the age of the relatively still very young (tread 7 years), the constitutional court has produced many decisions that have colored the thinking and constitutional life of indonesia. the discourse and thinking on constitutional law to be dynamic and attract the attention of a wide audience. even so, there are many controversies that arise related to the decisions of the constitutional court in a judicial review. not a bit of legal practitioners and academics who criticized the court action. some difficult issues posed by the court according to adnan buyung nasution, one is related to issues of implementation of the constitutional court that canceled the unlawful nature 2 art.24c joart.10 act no.24 of 2003 constitutional court 3 moh mahfud ―perlukah amandemen ke lima uud 1945‖ paper presented on national law convention uud 1945 as basic constitutional of grand design to political and state system, held by oleh bphn depkum ham, jakarta 15-16 april 2008. 49 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 of the material in the corruption and the violation of the doctrine of ultra petita prohibition. in the case of judicial review of act of the judicial commission (ky, komisi yudisial), for example, in its decision had eliminated all of the authority ky to supervise and check the behavior and performance of supreme court judges to the lowest ranks (the trial judge). ky also annulled the authority to examine the judges of the constitutional court, but the matter was never asked the applicant to be canceled. thus, the court has been hearing and deciding its own case containing conflict of interest because it concerned their interests. 4 mahfud md stated that there are some problems in the constitutional court decision. there are several decisions of the constitutional court that are ultra petita(unsolicited) that lead to intervention in the area of legislation, there is also a decision that can be considered to violate the principle of nemo judex in causasua (prohibition decide matters concerning himself), as well as decisions tend set or decision which is based on the opposition between one law with another law when judicial review to test materials that can be done by the court is the constitutionality of the act is vertical against the constitution and not the problem of the collision of the act with other legislation. 5 allegation that the court regarded as an institution that super-body was implicated. provisions of the constitution which states that decision of the constitutional court are final and binding as if a powerful weapon that reinforce the presumption. accusations that the constitutional court judges act is not neutral, no special orders from certain parties, group interests and money into two of the most often assumed to be the case that could affect the decision of the court. 6 naturally sometimes, caused of this institution make decisions that actually can be considered to be beyond its constitutional authority. 7 in short, many who sneer of this new institution, but not a few were waiting for their work to uphold the law and justice. the debates then come up the opinion, whether it is the constitutional court may make a decision containing ultra petita. is the nature of the ruling ultra petita in judicial review is justified by the law on the constitutional court. many legal experts are allowed, but not least also the states should not be. former chief justice, asshiddiqie, said the decision of the court may only contain ultra petita if the subject matter for which the review related articles of the other and at the heart of the law that must be tested it. while mahfud md and former supreme court justice benjamin mangkoedilaga, argues that the court should not make a decision ultra petita without inclusion in the act. 8 4 adnan buyung nasution, quo vadis penegakan hukum indonesia,on kompas, dec 22, 2006. 5 see mahfud md, konstitusi dan hukum,....... p. 278. 6 harjono, konstitusi sebagai rumah bangsa..... pp. 166-167. 7 mahfud md, konstitusi dan hukum,........... p. 278. 8 sumber:http://www.kompas.com/kompas-cetak/0702/05/opini/3289700.htm, accessed on 20 august 2010. http://www.kompas.com/kompas-cetak/0702/05/opini/3289700.htm 50 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils hery abduh sasmito jils i (1) november 2016, 47-68 discourse and discourse that developed, there are some legal experts who want to be ultra petita decision is prohibited to include in the amendment of the constitutional court act. 9 some considered the need for the amendment of the constitutional court ruling stating the permissibility of containing ultra petita with strict restrictions. others argued that it is not necessary amendments, and considers the practice of the constitutional court as part of judicial activism. interesting to be analyzed is the statement mahfud md in the event focus group discussion (fgd) held by the national law development agency (bphn) on tuesday november 2, 2010, with the theme ―the dynamics of the constitutional court in guarding the constitution.‖ according to mafhud md, in exercising its authority, the constitutional court (mk), have signs that must be obeyed. for example: the decision of the court cannot contain norms, the court may not decide exceed the petition (ultra petita), or in the case of dispute election results (phpu, perselisihan hasil pemilihan umum), the court only has the authority to decide disputes or mistakes vote count recapitulation. however, in practices, the signs were difficult to be obeyed always. mk, sometimes, need to make breakthroughs in the law to achieve justice. 10 breakthrough court in the case of bibit-chandra 11 for example can be used as a benchmark to assess the progression of the rule of law in the constitutional court. if so, then there is a tendency of progressive legal thought among the constitutional judges. the next question is whether progressive thinking is also visible in the decisions of the constitutional court containing ultra petita. is mk breakthroughs in making a decision containing ultra petita can be categorized as progressive measures would dare go against the flow in order to realize substantive justice and to guarantee the human rights. literature reviews separation of powers and check and balances in the theory of separation of powers of trias politica, each organ or state power should be separated, because the focus is more on the functions on one person or organ of government would endanger democracy and freedom. most countries in the world have adopted this theory, but of course with different style and modifications from each other. these modifications 9 see online article―jangan sampai mk merasa sebagai lembaga tertinggi negara: revisi uu mk, www.hukumonline.com, accessed on22/11/07 10 article on official website of constitutional court, check at http://www.mahkamahkonstitusi.go.id/index.php?page=website.beritainternallengkap& id=4719 , accessed on3 november 2010. 11 for the example, when mk showed the recording of kpk on court publicly and even live in some media televisions. http://www.hukumonline.com/ http://www.mahkamahkonstitusi.go.id/index.php?page=website.beritainternallengkap&id=4719 http://www.mahkamahkonstitusi.go.id/index.php?page=website.beritainternallengkap&id=4719 51 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 include a look at the division of powers doctrine and the doctrine of checks and balances system. after the amendments made to the 1945 constitution, then there is a tendency of the system used in the relationship between state institutions is the ideology of separation of powers based on the principle of checks and balances. in a system of checks and balances of state institutions recognized as equal position. no state institutions which superior as the position of the assembly first. state agencies such as mpr, dpr, dpd, president, bpk, ma and mk have equal position, no domiciled higher than the other, but the principle of state institutions are mutually supervise and control each other. this is the essence of the doctrine of checks and balances. the existence of the constitutional court in the constitutional system of indonesia one reason is to support the institutionalization of the system of checks and balances. judicial review: an overview judicial review consists of two words, namely “judicial” that shows the meaning of the court and the word “review” means perceive, assess, reexamine. in simple terms can be defined as a judicial authority to examine by the judiciary against the products of the written law. tests were carried out based on law no. 24 of 2003 is limited to testing whether the material and things outside material testing. 12 in testing in addition to testing the material covered four meanings, the first whether the form of legislation have been right or not, secondly whether the procedure of its formation has been carried out correctly or not, third, whether the institution former act was right or not, and the fourth is whether the format of legislation have been right or not. based on this, then there are two types of judicial review by the constitutional court, namely: material and formal examining of legislation. while examining on other regulations under laws were made by referring to the supreme court supreme court regulation no. 1 of 1999 on material claims test. thus the authors interpret the judicial review into three categories, namely first: judicial review in a broad sense, concerning all legal norms testing performed by the judiciary, whether the decision, court decisions or legislations. second, judicial review in the narrow sense, should be in terms of testing norms of the legal form of the legislation alone. judicial review in the narrower sense is divided again into two groups, namely: constitutional review if tested, are laws against the constitution and the judicial review of regulations, if the tested is legislation under the act to the act. in this paper discussed constitutional review, namely judicial review against the constitution. 12 article 51 (2) constitutional court act 52 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils hery abduh sasmito jils i (1) november 2016, 47-68 constitutional court decision and problem of ultra petita constitutional court decision in the testing of the act against the constitution consists of three types, among others: 13 (1) declare the petition cannot be accepted, if the constitutional court found the applicant and/or his request does not qualify as referred to in article 50 and article 51. (2) declare the petition is granted, if the constitutional court found the request is founded. in the decision of the constitutional court must be clearly stated: a. the substance of paragraphs, articles, and/or parts of laws that are contrary to the constitution of the republic of indonesia of 1945 and stated that the substance of the paragraph, chapter, and/or parts of the law is not legally binding. b. in the formation of legislation in question does not meet the provisions of the establishment of law based on the constitution of the republic of indonesia of1945, the ruling stated the petition is granted and declared the law does not have binding legal force. (3) declare the petition is rejected, if the law is not in conflict with the constitution of the republic of indonesia year 1945, both the formation and the material in part or whole. the problems arise when the court made the ruling that the constitution of a different model, as mandated by article 56 jo. article 57 constitutional court law. one example is the decision containing ultra petita. ultra petita according to ranuhandoko 14 is exceeded requested. ultra petita is a term familiar enough in the civil procedure code. in civil law, set a principle that limits the judge in deciding a case as outlined in article 178 paragraph (2) and (3) hir namely: ―the judge was obliged to prosecute every courant charges.‖ and "he is prohibited from going to impose a decision on the case were not prosecuted, or will graduate more than what was required.‖ this chapter provides an assertion that a civil judge should not decide on cases that are not prosecuted or pass the case were not prosecuted. progressive law theory the progressive law principally contradicts with the law of two components, namely the rules and behavior. 15 prof. satjipto rahardjo also states that the law needs to be re-thought in the context of philosophical 13 see art. 56 uu no.24 of 2003 14 i.p.m. ranuhandoko, terminologi hukum, (jakarta: sinar grafika, 200), p.522. 15 satjipto rahardjo. ―menuju produk hukumprogresif‖. paper on lgd, faculty of law undip. semarang, 24 june 2004 53 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 which is the law should be used for humans. 16 with that philosophical, the man set the tone and orientation point of law. laws are there to serve people, not the other way to serve the law of man. departing from this assumption, the presence of these not for himself, but for something more spacious and large that is why when there is a problem in the law, then the law should be reviewed and changes into better form not the people forced put into the legal scheme. in the perspective of a progressive law theory, the law is not an autonomous institution which is separated from the human interest. quality of law is determined by its ability to serve human welfare. laws should provide the happiness for people. this concept led to the legal doctrine of progressive ideology embraced pro-justice law and the law of the propeople. justice provides under the law, and not vice versa. if the rule of law does not reveal the breath of justice, then he should be abandoned. judicial review in indonesia history of institutionalization of judicial review discussing about the institutionalization of judicial review in indonesia cannot be separated from the question how this idea first emerged and developed until today. until today it has hundreds of countries that institutionalize the practice of constitutional review (judicial review) in their state system. indonesia itself is the 78 th country that established the constitutional court as the state judiciary with the authority to carry out constitutional review and is the first country in the world in the 21 st century that established it. 17 if traced from its historical background, the various review models 18 that can be classified into two types of main model of review, namely: american decentralize model who first develops and centralize the model as was done in austria more recently present. the first model represents the ideas embraced by the countries traditionalist common law and the second model followed by 16 satjipto rahardjo, hukumprogresif (penjelajahan suatu gagasan), paper presented on doctoral alumni meeting, faculty of law undip semarang, 4 september 2004, p. 3. 17 for more comprehensive, please refer to jimly asshiddiqie and mustafa fakhri, mahkamah konstitusi, kompilasi ketentuan konstitusi, undang-undang dan peraturan di 78 negara, jakarta: pusat studi hukum tata negara fakultas hukum universitas indonesia dan asosiasi pengajar hukum tata negara dan hukum administrasi negara indonesia. 18 according to jimly, at least there are 10 models of judicial reviewsuch as: model of united states of america model austria (continental model), model of france, model america dan continental, model reviewing special chambers, model belgia, model without judicial review, model legislative review, model executive review, model of international judicial review. see jimly assiddiqie, 2005, model-model pengujuan konstitusional di berbagai negara, konstitusi press, jakarta. pp. 55-94. 54 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils hery abduh sasmito jils i (1) november 2016, 47-68 most of the european countries that referred to civil law. the american model, the constitutional review done dispersed and decentralized among courts in the states and the supreme court of europe, while in the model of austria or the european model of constitutional review only done centrally in one single institution. in addition, according ashshiddiqie there is still one more model that is unique and cannot be considered whether to follow the model of the united states or austria. the model is as practiced in france carried out by a constitutional council (conseil de constitutionel). as the name suggests, this institution is actually not a judicial institution. 19 zainal arifin hoesein 20 divided three time periods associated with the development of a judicial system in indonesia. first, is the early preparation on 1945-1970. during this period, only limited judicial review of ideas and discourse that never materialized. second, is when the period began to be formulated law no. 14 of 1970 on basic provisions on judicial power until 1999. this is the first judicial review extensively discussed and debated openly, as well as a first milestone of the implementation of the mechanism. third, future changes in 1945 until 2003. during this period there is a process change in the political system and state power, including the formation of the constitutional court is given the authority to test the laws against the constitution of 1945. at the time of the discussion of the 1945 changes, the idea of the importance of a state judiciary reappear, especially after the assembly no longer serves as the highest state institution. the principle of parliamentary supremacy that had been held strong has been switched from the supremacy of the assembly to the supremacy of the constitution. 21 because of a fundamental change is deemed necessary to provide an institutional mechanism and the constitutional and the presence of state agencies that deal with the possibility of disputes between state agencies that have now become equal and offsetting and mutual control (checks and balances). 22 model of constitutional review instituted in austria centralized to the assembly as a form of institutional selection constitutional court in indonesia. ultra petita decision on judicial review according to normative provisions various parties have different views on responding ultra petita decision made by the constitutional court. the pro against the permissibility of ultra petita decision in the judicial review as follows: (a) if part of the requested review related to other chapters and at the main point of the law that should 19 see jimly, ibid. hal 147. 20 zainal arifin hoesein, 2009, judicial review di mahkamah agung: tiga dekade pengujian peraturan perundang-undangan, rajagrafindo persada, jakarta. 21 see art 1 (2) uud 1945: 22 ―mahkamah konstitusi dalam sistem ketatanegaraan republik indonesia‖, paper presented at pendidikan sespati dan sespim polri, bandung, 19 april 2008. 55 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 be reviewed, then the cancellation of the related articles cannot be avoided; (b) if the applicant included a request ex aequo et bono (to decide for justice), then the judges have the freedom to determine the verdict; (c) the doctrine of ultra petita only used in civil law procedural; (d) objektum litis in a civil case is a civil rights, whereas in judicial review is a constitutional right, and therefore are erga omnes. civil rights cannot be equated with constitutional rights; (e) the authority of the constitutional court is to examine the laws against the constitution, so it’s not the chapters and verses; (f) ultra petita decision prevalent in other countries, even the idea of a judicial review of the decision first came from john adam which very ultra petita, and (g) the constitutional court act did not expressly prohibit a ban on ultra petita. on the other hands, those who objected to the decision that had the ultra petita in the constitutional court holds that the decision ultra petita in reviewing the law violates the generally accepted doctrine/universal in the procedural law (prohibition ultra petita), the principle of non-ultra petita is an international jurisprudence. ultra petita decision also considered violated a principle of popular sovereignty (supremacy of parliament), and even seem to interfere with the realm of the other powers, thus violating the doctrine of separation of powers and checks and balances system, ruling ultra petita constitutes an infringement of the legislative sphere by the judiciary for interfering authority to regulate (regeling) which is not disputed. 23 even, the practice of ultra petita, violated the constitutional court act, because the act does not regulate the permissibility of making a decision containing ultra petita. in the perspective of positivistic-legalistic, format the verdict as stipulated in the constitutional court law does not allow for ultra petita. based on the difference in perspective concerning to ultra petita above, the opinion of the author, there are two issues that are operational are worth further elaborated in order to address how to position verdict ultra petita in a normative perspective. two things: first related to whether the doctrine of ultra petita is generally accepted to be the norm that is binding for all judges in many cases, and secondly, given the constitutional court act does not set explicitly, it will be looked at more comprehensively about how the real perspective of the constitutional court act against vonnis ultra petita. to analyze the two sub problems above, author used two (2) analysis approach, i.e normative analysis and comparative analysis. normative analysis here will be used to examine the articles of the constitutional court act and the constitutional court regulations governing testing act. while, the comparative analysis in this discussion is limited to the comparison between the judicial systems in accordance with indonesian laws, and in this case will only be presented the perspectives of the procedure of civil code, the procedure of criminal code, and also the procedure of administrative court against decisions containing ultra petita. by doing so, then it will be 23 mahfud md, mendudukkan soal ultra petita, accessed from http://www.kompas.com/kompas-cetak/0702/05/opini/3289700.htm http://www.kompas.com/kompas-cetak/0702/05/opini/3289700.htm 56 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils hery abduh sasmito jils i (1) november 2016, 47-68 clear position vonnis ultra petita, both in the perspective of the indonesian judicial system in general and judicial particular. prohibition ultra petita expressly provided for in article 178 paragraph (3) het herziene indonesisch reglement, which in this case can be interpreted in two aspects, first, judges are prohibited from granting over things that are not requested by the plaintiff, and secondly, judges are prohibited to grant more than requested by the plaintiff. however, in the development of judicial practice, ultra petita prohibition is not absolute longer considered valid by the jurisprudence mari no. 556k/sip/1971 which gives legal norms that grant more than the accused is permitted as long as it is still in keeping with the state of the material. in the criminal procedure law ban ultra petita only related to indictments that are litis contestatio for the proceedings, and the reverse does not apply in relation to criminal charges. prior to the enactment of the criminal procedure code, based on the jurisprudence of the supreme court decision no. 47 k/kr/1956 dated march 23, 1957, obtained the rule of law, that is the basis of the examination by the court is the indictment (charges) and not the allegations made by the police. thus, both the aforementioned article asserts that the judge's decision should only be about the facts within the limits of the public prosecutor's indictment. the judge is not justified sentence beyond the limits contained in the indictments, therefore, the accused can only be convicted based on what proved the crimes he committed in the formulation of the indictment. article 193 paragraph (1) criminal procedure code imposes limits emphatically, ―if the court found the defendant guilty of committing a crime against her, the court dropped the criminal.‖ likewise, according to article 191 paragraph (1) criminal procedure code, ―if the court believes that the results of the examination in the trial, the guilt of the accused for the actions against her not proven legally and convincingly, the defendant was acquitted‖. in the event the administrative court of law, although normatively charge prohibited by the ultra petita because according to the supreme court act can be used as an excuse filed reconsideration, but in the development of decision reformatio in peius allowed. reformatio in peius is a verdict dictum that it is not profitable to plaintiff, such as applying the reformatio in peius context in the case of employee affairs. through mari decision no. 5 k/tun/1992, terminated on 6 february 1993, the judge cassation creates new legal norms on the prohibition of ultra petita, as follows: 24 ―that although plaintiff origin is not filed in the petition, the supreme court can consider and adjudicate all decisions or rulings that are contrary to the existing order. is not in place when the right to test the 24 himpunan kaidah hukum putusan perkara on yurisprudensi mahkamah agung ri tahun 19691997, mahkamah agung ri, 1999. p.10. 57 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 judge only on the object of dispute filed by the parties as is often the object of dispute must be assessed and considered in relation to parts of the rulings or decisions agency or official tun is not disputed between the parties (ultra petita).‖ thus, the ultra petita prohibition is not a doctrine that applies absolutely and generally, as well as binding on all judges in the various courts. this happens because each procedural law has different characteristics from each other, as well as the need for legal developments in judicial practice protocols. this conclusion would also apply in the procedural law of judicial review in the constitutional court. constitutional court decision was taken after considering a request which comprises a posita or description of the subject on which the petition and the petition is based on the evidence available. 25 if the application is in the testing material reasoned and therefore granted, then based the provision of article 56 and article 57 of the constitutional court act, the constitutional court stated that the substance of paragraphs, articles, and/or parts of laws contrary to the constitution. should not any other form decision except the decision based on the provision of article 56 and article 57 the constitutional court act, jo. article 36 (c) of constitutional court decision number 6/pmk/2005. in other words, in the perspective of positivism, there is no room for constitutional judges to make decision containing ultra petita, especially containing positive legislature. although not strictly regulated, in the sense of actively forbid, but to approach the interpretation of systemic can conclude that the provisions of law no. 24 year 2003 regarding the constitutional court and the constitutional court regulation number 006/pmk/2005 does not enable made the decision containing ultra petita. in the simple way, formatively the procedural law of judicial review does not allow the decision made ultra petita. however, in the cult has been some decision of the court which carries with ultra petita and can therefore be used as jurisprudence of the court. jurisprudence itself is one source of formal law in the procedural law of judicial review. if the understanding of this jurisprudence may be associated with whether or not perform ultra petita for constitutional justice, and then of course there should be permanent provisions and rules, whether and to what extent the boundaries of permissibility of constitutional judges to make a decision containing ultra petita. 25 maruarar siahaan, 2008, uud 1945 sebagai konstitusi yang hidup, setjen mkri, jakarta. p.394. 58 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils hery abduh sasmito jils i (1) november 2016, 47-68 ratio decendi of the constituional court made containing ultra petita in judicial review the controversy and debate among legal experts concerning to the court decision which containing ultra petita become seriously, not only associated with the act of issuing variation decision has no legal basis, but also the impact of the decision to the state administration and law enforcement in indonesia. despite the controversy proficiency level, it would be better probably if examined, what exactly drives and underlying constitutional judges to issue a ruling ultra petita. through the legal considerations of the decision we will find the legal reasoning of judges, including the paradigm that underlies the verdict handed down. that would be a light to understand what really wants to achieve / addressed by the judges through its decision. in the context of the discussion on ultra petita this, we can get a legal principle in the jurisprudence created by the constitutional court, and therefore can be determined how far the boundaries of ultra petita can be done by the constitutional court in a judicial review. below are presented some of the case: case number 001-021-022/puu-i/2003 in case number 001-021-022/puu-i /2003, the constitutional court has annulled the law no. 20 year 2002 on electricity as a whole. the constitutional court in its legal considerations actually focuses its testing on article 16, article 17 paragraph (3), as well as article 68 of the electricity act that ordered system of separation/splitting electricity business (unbundling system) with entrepreneurs different, but because of these articles a chapter of the heart and the underlying paradigm electricity act, the electricity act declared the overall strength is not legally binding. court argued that the system is contrary to article 33 of the constitution 45, since they will be made worse state that will be geared towards not guarantee the supply of electricity to all levels of society, both commercially and non-commercially. 26 case number 007/puu-iii/2005 in examining law no. 40 of 2004 on national social security system, the applicant requested that that article 5 (1), paragraph (3) and (4) and article 52 shall be declared contrary to article 34 paragraph (2) of the 45 constitution and declared enforceable binding. the main focus in this petition is whether the state of meaning in the phrase ―the state social security 26 decision no. 001-021-022/puu-i/2003, p. 347. 59 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 system ....‖ in the hands of the central government, local government or both. in the verdict, the court rejected the petition article 5 (1) and article 52 of the social security law, but set the article 5 paragraph (2) social security law contradictory to the 1945 constitution and stated that article does not have binding legal force, whereas the petitioners did not asked in the petition. in considerations of law related to ultra petita article 5 (2), 27 the constitutional court stated, that although not requested in the petition request, but this passage is a unity that cannot be separated by paragraph (3), hence if retained instead will give rise to multiple interpretations and legal uncertainty. case number 003/puu-iv/2006 decision no. 003/puu-iv/2006 is a decision of the judicial review of act no. 31 of 1999 on the eradication of corruption (corruption act). the main issues appear in this decision is the annulment of the provisions of the expansion of the element ―unlawful nature of the material‖ as defined in explanation of article 2 (1) of the taxable income.in the decision of the constitutional court clearly stated that the application for judicial review of the word ―may‖ and ―experiment‖ as the principal of petitum 28 declared ―rejected‖ because declared not contradictory to article 28d (1) constitution of 1945. however, on the other hand, mk established that that explanation of article 2 paragraph (1) corruption act is deemed to have expanded the categories element ―unlawful‖ within the meaning of written laws (formelewederrechtelijk / nature of the unlawful formal), but also in the sense materielewederrechtelijkheid (nature of the unlawful material), and therefore contrary invitation 28d (1) constitution of 1945. according to the court, explanation of a law should not include the new norm, because the only explanation includes a description or further elaboration of the norms set out in the torso. admittedly teachings of nature against the substantive law in article 2 (1) also would cause legal problems, because what is appropriate and qualified morality and sense of justice are recognized in the community, which vary from one region to another, would lead to uncertainty law. 29 this decision does not provide an explanation that is directly related to why the court did ultra petita. case number 005/puu-iv/2006 decision number 005/puu-iv/2006 is a decision judicial review on act number 22 of 2004 concerning judicial commission (ky act) and the law 27 see art 5 (2) 28 on his application, dawud jatmiko argued that art 2 ayat (1), explanation of art 2 (1), art 3, explanation of art 3, dan art 15 (as long as indicate the word ―try/experiment‖ dan ―may‖) uu ptpk clearly contradictive with art 28d (1) uud 45 29 decision no.003/puu-iv/2006. see p. 74. 60 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils hery abduh sasmito jils i (1) november 2016, 47-68 of the republic of indonesia number 4 of 2004 on judicial power (uu kekuasaan kehakiman, uu kk) of the constitution, 1945. the main issues echoed in this decision is the uncertainty regarding the mechanism of supervision of judges in the law ky so therefore to legal uncertainty. 30 according to gayus lumbun, 31 the constitutional court ruling related to the supervisory authority of judges as stated in article 1 (5) of law no. 22 of 2004 is ultra petita and discriminative, 31 supreme judges apply that they are not included in the object of supervision by ky. but mk precisely placed themselves outside the objects of supervision ky. this ruling has also significantly reduced the whole authority of ky in supervising judges (including supreme court justices and constitutional justice), when in fact the petition of the petitioner is related to the desire for justices is not included as a party controlled by ky. in this regard the court in its legal considerations states: ―these exceptions (justice court) was based on a systematic understanding and interpretation based on ―original intent‖ of the formulation of the provisions of article 24b ky 1945 did not relate to the provisions concerning the court under article 24c of the 1945 constitution‖ 32 associated with the cancellation of the entire supervisory authority, the court recognized ―that the implementation of the supervisory function of birth of legal uncertainty (rechtsonzekerheid ) due to the absence of clear norms about the scope of definition of the conduct of judges and judicial technical control related to the limits of accountability from the perspective of the behavior of judges with the independence of judges in performing his judicial duties, by naked intervention against the judicial power in the form of pressure or the pressure that is directly or indirectly.‖ 33 case number 006/puu-iv/2006 decision of no. 006 / puu-iv/2006 which annulled act no. 27 of 2004 on the commission of truth and reconciliation (uu kkr) overall very surprised many. the applicant in his petition that the existence of article 1 point 9, article 27, 34 and article 44 is contrary to the constitution 45, particularly article 27 paragraph (1), 28d (1), 28i (2).according to applicants, the norm in article 27 has negated the guarantee on antidiscrimination, equality before the law and respect for human dignity 30 indonesian constitutional court: institutional report 2006, p.33. 31 gayus lumbun on ―putusan mk ultra petita dan diskriminatif, buletin komisi yudisial‖, accessed: www.komisiyudisial.go.id. 32 decision no.005/puu-iv/2005, chapter of ―pertimbangan hukum‖, pp.173-174. 33 ibid. p.201. 34 see art. 27 uukkr http://www.komisiyudisial.go.id/ 61 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 guaranteed by the constitution, 1945. 35 moreover, the existence of article 44 of the kkr act considered would eliminate the state's obligation to prosecute and punish perpetrators. in the decision which declared contrary to the 1945 constitution is in fact article 27, but because the court considers the provisions of article 27 determines the overall operation of the trc act, then the whole trc act otherwise have no binding legal force. according to the court, the determination of the existence of the amnesty as a condition for the fulfillment of compensation and rehabilitation is that the exclusion of legal protection and justice guaranteed by the 1945 constitution, however, the overall cancellation kkr act has been to diminish the mandate of the act to conduct a thorough investigation and settlement of past human rights violations, with the reconciliation approach, where it becomes impossible when used ordinary rules. case number 012-016-019/puu-iv/2006 constitutional court's decision in the case number 012-016019/puu-iv/2006 mandated a message that, dualism courts that prosecute corruption (as formulated in article 53 of law no. 30 of 2002 on corruption eradication commission) is contrary to the 1945 constitution, therefore, needs improvement arrangements corruption court in the indonesian justice system. being a unique look for the verdict of the constitutional court decision to postpone the enforceability tie and give a time limit of 3 (three) years for the legislator to establish the corruption court law. amar delay does not actually requested by the applicant. the constitutional court argued that although article 47 of the constitutional court law states that ―the constitutional court had permanent legal power since completed pronounced a plenary session open to the public‖; but that investigations of corruption by the kpk and the corruption court that is running is not disturbed and did not experience the chaos that can result in legal uncertainty which is not desired by the 1945 constitution, the constitutional court to consider the need to provide time for the transition process smooth (smooth transition) to the formation of the new rules. 36 at this point, the attitude of statesmanship and wisdom of the judges was showed. breakthrough like this contains the value of expediency and fairness as well, aims to create legal certainty. from some cases ultra petita presented above, if the judgment is made groupings used by constitutional judges, it will get the data related to why the constitutional judges make decisions that ultra petita, as follows: 1) part of the legislation (paragraphs, articles, explanations, etc.) requested tested the ―heart/main point‖ of the legislation, so that the entire article cannot be implemented and should be declared no binding legal force 35 see decision no.006/puu-iv/2006, chapter of ―duduk perkara‖ (attachment of application) p. 21. 36 ibid. p. 286. 62 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils hery abduh sasmito jils i (1) november 2016, 47-68 entirely. included in this category, for example: the cancellation of the electricity law (case number: 001-021-022/puu-i/2003) and the cancellation of the truth and reconciliation commission act (case number 006 / puu-iv / 2006). 2) part of the legislation (paragraphs, articles, explanations, etc.) requested tested with regard to other articles that cannot be separated, so that the chapters pertaining finally declared unenforceable as well. included in this category are the considerations: judicial review system of the national social security system (case number 007/puu-iii/2005). judicial review in judicial commission (case number 005/puu-iv/2006) appears to have also led to these considerations, although the court did not describe it explicitly. 3) in order to avoid legal chaos, then the validity of the binding decision taken by a delay pending the establishment of new changes rules. in this case, the reasons of expediency beat of legal certainty, though in fact the ultimate objective is also to create legal certainty. included in this category are the reason for the cancellation of the decision of the legal basis for the corruption court (case number 012-016-019 / puu-iv / 2006). constitutional court's decision that tests the law number 16 year 2008 regarding amendment to law number 45 year 2007 on state budget 2008 (case number 04 / puu-vi / 2008) are also included in the category of these reasons. 4) mk legal considerations in trouble ultra petita only legal considerations associated with the main petition, in fact rarely impressed fetched and appeared suddenly. in this category harjono’s statement 37 to be relevant, that according to the constitution is very clear, the authority of the constitutional court is to examine the enactment laws against the constitution, so it's not the chapters and verses. throughout tested were related laws, then there is no ultra petita dictionary. included in this category are in the nature of the case against the cancellation of substantive law in the anti-corruption act (case number 003/puuiv/2006) and case number 005/puu-iv/006 which slashed authority of the judicial commission, all related to issuance of the constitutional court judges who supervised the judicial commission. 37 harjono, konstitusi sebagai rumah bangsa, jakarta, setjen dan kepaniteraan mkri, 2008. pp. 182-185. 63 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 ultra petita in judicial review: perspective of progressive law the uncertainty of the text governing the type and the charge should be in the constitutional court decision makes the debate so far has not led. as one consequence, the decision of ultra petita constitutional court in a judicial review is also a controversy here and there. the pro assume that the procedural law of the constitutional court (mk) does not regulate ultra petita, because it is may allowed to court makes a decision that is ultra petita. the logic of the law of ultra petita exists only in civil law, because objectum litis in mk different from civil judicial protecting the individual, whereas in the court over public law nature, not only to protect the interests of the litigants, but is erga omnes. in connection with the legal provisions have not been regulated in detail events including ultra petita , the court reserves the right to regulate the translation of the pmk and in the course of finding the law in prosecuting authority. the opening of a new precedent through its first verdict in the testing of the electricity act makes solving solutions deadlock normative attached to the constitutional court act and the pmk number 05/pmk/2005 related to puzzles ban ultra petita. the verdict has canceled the spirit of liberalization of the electricity sector in law number 20 year 2002 regarding electricity has become a bidder community concerns over the constitutional rights of those who potentially violated the law. despite the provision is regarded as contrary to the constitution is basically just article 16, 17 paragraph (3), as well as 68, especially regarding unbundling and competition, but because of these articles is the main of act no. 20 of 2002, the electricity act should be canceled overall. although the rules are still multiple interpretations, the process of change is not necessarily centered on the existing rules, but the creativity of actors in the legal context. in the context of this case the constitutional court judges had the courage to creativity and law breakthroughs in make the laws and regulations more meaningful and functional for the justice. the constitutional court has made the rule breaking in order to break up the vagueness (obscure) the provisions of the act on the constitutional court and the pmk to give birth to embryos new type of decision that can be used to achieve substantive justice in times of testing to come. this is by satjiptorahardjo said that the essence of the law is always in the process of becoming (law as a process in the law making). thus it can be said, a precedent on the decision made containing ultra petita in the procedural law testing these laws can we categorize as progressive enforcement action. however, it should be underlined that the creativity of anything done by law enforcement can be meaningless when there is progressive to achieve substantive justice, placing fairness, expediency and 64 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils hery abduh sasmito jils i (1) november 2016, 47-68 human happiness as an end. in other words, could have decisions containing ultra petita that actually harm the justice and expediency. in the context of the decisions that contain ultra petita as described in the previous section, it can be said that not all of these decisions reveal the substantive justice, and therefore also cannot be called as a progressive form of law enforcement. in a ruling ultra petita cancellation of the kkr law (case number 006/puu-iv/2006), for example, the court considered only emphasis on the judicial aspect. 38 decision kkr also has brought unrest among the victims, which have viewed the existence of the kkr law as one hope for justice for what they have experienced in the past. 39 case trimming the authority of ky (case number 005 / puu-iv / 2006) which cut the authority of the judicial commission, relating to the issuance of the judges of the constitutional court of the parties who supervised the judicial commission was also seen their discriminatory attitude and tended to be legalistic, because only the aspect of the original intense constitution 45 just as legal considerations. that procedural justice, for it was during the discussion in the committee mpr, did not appear as the name of constitutional judges who supervised ky. historically the legal facts simply cannot be denied, but whether the decision of the court in the above nuances reflect the values of justice and expediency, especially when linked to the cancellation of the entire authority of the judicial commission in supervising judge amid the tangled threads of the mafia. another case in the context of the legal basis is for the cancellation of the corruption court (case number 012-016-019/puu-iv/2006). according to the author, this decision reveals the progression in law enforcement. the court in this case trying to bring together the three values of interest law, namely: fairness, certainty and expediency. from the aspect of justice, the court considers that the existence of anti-corruption court makes dualism and double standards for the defendant in a corruption case. in the aspect of legal certainty, the court formally seen that there are errors in the foundation for the establishment corruption court that should be made in a separate law. from the aspect of expediency visible from mk attempt to avoid legal confusion that can be inflicted by cancelled the legal basis of the corruption court to give a time limit of 3 (three) years for the legislator to establish the corruption court act. thus it can be made a conclusion that not every decision of the court in testing legislation containing ultra petita contains the characteristics of a progressive law enforcement. mk courage to be creative in decisions is good, 38 am. fatwa on ―menimbang-nimbang kinerja mahkamah konstitusi‖, majalah figur, edisi x/th. 2007. 39 indriaswaty d saptaningrum, s.h, llm, dkk, ―ketika prinsip kepastian hukum menghakimi konstitusionalitas penyelesaian pelanggaran ham masa lalu pandangan kritis atas putusan mk dan implikasinya bagi penyelesaian pelanggaran ham di masa lalu‖, position paper elsam against mk decision annulled the uu kkr, jakarta, 19 december 2006, accessed on http://www.elsam.or.id, at 06-01-2010. http://www.elsam.or.id/ 65 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 1 issue 01, 2016 as long as such measures are used in context and in order to realize substantive justice. of course there are always those who are not satisfied with the actions of the court in making the decision to apply the principle of rule breaking as in the decision that isultra petita and positive legislature. it is not independent of the school of legal positivism and paradigms of thought that is controlled mostly indonesian legal practitioners and academics. such concerns are not only happen in indonesia, but also in some countries that have a testing system unconstitutional. in this case, the constitutional court has also entered the region in the tradition of common law known as judicial activism, some thought the judge in the verdict that sometimes looks liberal-progressive in its decision legal considerations. however, the practice of judicial activism that tended judicative heavy it can be negative and destructive if used to maintain conservatism of the judiciary or smooth the subjective preferences of the elite and the judges themselves. if that happens, with great authority, the judiciary can be morphed into an authoritarian institution (judicial authoritarian) that precisely denies the fundamental principle of separation of power and checks and balances as held strong over the years. power is always shown its real face to always tend oppressive and corrupt. lord acton ever been stated that, ―power tends to corrupt, and absolute power corrupt absolutely.‖ the use of judicial activism is excessive it can cause an unhealthy climate for the growth of democracy itself. to keep it, then activism judicial need is always escorted by of criticism academic constructive, so that the court will not lose its legitimacy. 40 reflecting on enforcement realities above, it can also offer the idea of limits on the power of the constitutional court through progressive changes constitutional court law as one of the alternatives revamping state judiciary system in indonesia. conclusion the doctrine of ultra petita prohibition for judges is not generally applicable. by using a normative approach and systemic interpretation it can be said that the provisions in the laws or regulations of the constitutional court does not give the possibility for constitutional judges to make a decision ultra petita. in issuing the verdict containing ultra petita, generally mk basing their inseparable relationship between articles are reviewed with other chapters that are not reviewed and so, chapter or the entire law must be declared unenforceable. nevertheless, some of the decisions sometimes do not include legal considerations related directly to decision he passes that are ultra petita, in the sense that only legal considerations associated with the main 40 pan mohamad faiz, ―konstitusi dan aktivisme yudisial‖, sumber: kolom opini jurnal nasional, tuesday, 25 august, 2009. 66 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils hery abduh sasmito jils i (1) november 2016, 47-68 petition, in fact rarely impressed fetched and appeared suddenly.mk breakthrough in making ultra petita decision in principle is a form of progressive law enforcement, but the creativity of anything done by law enforcement can be meaningless when there is progressive to achieve substantive justice, placing fairness, expediency and human happiness as an end. 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pasca amandemen uud 1945.on public discussion about the amandment of constitution, held by national law commission, jakarta, 12 june 2008. -----------, 2007. putusan mahkamah konstitusi belum tentu benaron seputar indonesia newspaper, 14 agust 2007. -----------,politik hukum menuju pembangunan sistem hukum nasional, paper presented at seminar of indonesian legal developmenet post amandement,held by bphn dephuk ham ri, jakarta, 29-31 may 2006. miftahul huda, ultra petita dalam pengujianundang-undang, jurnal konstitusi vol 4 no 3 (september 2007). nasution, adnan buyung, on ―quo vadis hukumdanperadilan di indonesia‖, kompas, edition december 22, 2006. pan muhammad faiz, mengawal demokrasi melalui constitutional review: sembilan pilar demokrasi putusan mahkamah konstitusi, paper on book “ui untuk bangsa‖, 2009. rahardjo, satjipto. 2004.hukum progresif (penjelajahan suatu gagasan), presented on doctoral law alumni meeting, universitas diponegoro semarang, 4 september 2004. ---------. 2009.lapisan-lapisan dalam studi hukum. banyumedia publishing. malang. ---------. 2004. menuju produk. paper on lgd, faculty of law undip. semarang, 24 june 2004. ----------, 2005. hukum progresif. hukum yang membebaskan. jurnal hukum progresif, vol. 1/no. 1/april 2005, pdih undip, semarang. ----------,2007. membedah hukum progresif.buku kompas. jakarta. ----------, 1980. hukum dan mayarakat. angkasa. bandung. ranuhandoko, i.p.m. 2000. terminologi hukum, sinar grafika. jakarta. ronny hanitijo soemitro, 1990. metodologi penelitian hukum dan jurimetri, ghalia indonesia, jakarta. siahaan, maruarar. 2008.uud 1945 sebagai konstitusi yang hidup. sekretariat jenderal mahkamah konstitusi. jakarta. ----------,2007. aspek teoritis dan implementasi putusan mahkamah konstitusi pada perkara pengujian undang-undang, paper on coordinator meeting of constitution studies center, jakarta. sudijono sa, ―konfigurasi hukum progresif‖, jurnal ilmu hukum, fh undip, vol. 8, no. 2, september 2005. soerjono soekanto. 1986. pengantar penelitian hukum. universitas indonesia perrss. jakarta strong, c.f. 1963.political constitution. sidgwick and jackson ltd.london. tanya, bernard l., dkk. 2006. teorihukum. strategi tertib manusia lintas ruang dan generasi, cv. kita: surabaya. 68 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils hery abduh sasmito jils i (1) november 2016, 47-68 laws and regulations the constitution of republic indonesia, 1945 law no. 23 of 2004 concerning constitutional court law no. 48 of 2009 concerning to judicial power law no. 10 of 2004 concerning to the establishment of laws and regulations attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are 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& security by cloudflare jils (journal of indonesian legal studies) volume 6(2) 2021 437 available online at http://journal.unnes.ac.id/sju/index.php/jils research article reform regulation of novum in criminal judges in an effort to provide legal certainty rian saputra1 , muhammad khalif ardi2, pujiyono pujiyono3 , sunny ummul firdaus4 1 faculty of law, universitas slamet riyadi, indonesia 2,3,4 universitas sebelas maret, indonesia  rians050595@gmail.com submitted: august 8, 2021 revised: october 29, 2021 accepted: oct 20, 2021 abstract the research stems from decision number 224 pk/pid.sus/2018 which grants the application for judicial review (hereinafter abbreviated as pk) by a suspected narcotics abuser with a novum (new evidence) in the form of previous judges' decisions. in this case, this study aims to conceptualize how the regulation of pk legal remedies in criminal cases should be. this research is a normative indonesian legal thoughts amid various world legal thoughts published by faculty of law, universitas negeri semarang, indonesia volume 6 issue 2, november 2021 issn (print) 2548-1584 issn (online) 2548-1592 jils (journal of indonesian legal studies) http://journal.unnes.ac.id/sju/index.php/jils https://orcid.org/0000-0002-5827-0287 https://orcid.org/0000-0002-5971-2446 https://orcid.org/0000-0003-0246-8857 438 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils legal research, the approach used is a case approach, a comparative approach, and a conceptual approach, with a literature study research technique. after knowing the arguments for the admissibility of submitting a pk in the form of a district court decision, the author makes several comparisons with the criminal procedure code (america and france), and concludes based on this comparison that the use of the basis for submitting a pk should be regulated clearly and firmly in the criminal procedure code, because the two countries in its criminal procedural law it expressly states that the submission of a pk must be based on new facts and evidence which, if presented at the previous trial, has the potential to reduce or even abort the prosecution's charge keywords: district court decision, novum, review http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 439 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract …………………………………………………….…. 437 table of contents ……………………………..…...….…... 439 introduction ………………………………….…………….. 440 comparison of novum arrangements in american & french criminal procedure………… 452 ideal formulation of novum arrangements in criminal justice…………………………………………. 455 i. substances that are still unclear regarding the characteristics of novum ………………………………… 465 ii. the principle of judges may not reject cases (principle of ius curia novit) …………………………….. 470 iii. reconstruction of novum arrangements in criminal cases ……………………………………………………….. 472 conclusion …………………………..………………………. 479 references ………………………………………………….… 479 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. how to cite: saputra, r., ardi, m. k., pujiyono, p., & firdaus, s. u. (2021). reform regulation of novum in criminal judges in an effort to provide legal certainty. jils (journal of indonesian legal studies), 6(2), 437-482. https://doi.org/10.15294/jils.v6i2.51371 http://journal.unnes.ac.id/sju/index.php/jils https://journal.unnes.ac.id/sju/index.php/jils/article/view/51371 440 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction the idea and main idea that the authors want to include in this paper begins with decision number 224 pk/pid.sus/2018 which grants the request for judicial review (hereinafter abbreviated as pk) by a suspected narcotics abuser with a novum (new evidence) in the form of decisions former judge. the problem of drug abuse and illicit trafficking has now become a global problem that has hit all regions and countries around the world. this was stated at the commission on narcotic drugs (cnd) session in vienna on 11-12 march 2009 which resulted in a political declaration and plan of action of 2009 which contained a political declaration and action plan regarding international cooperation in the framework of a balanced and comprehensive strategy for solve the problem of narcotics in the world.1 the problem is, narcotics is a problem that must be handled seriously by all components of society. such handling is not only for users, but also the development of the narcotics business that exists in indonesia has begun to be disturbing. the national narcotics agency (bnn) has mapped 72 drug networks in indonesia. this was stated by the head of bnn, commissioner general budi waseso. the deputy for drug eradication at the national narcotics agency, inspector general arman depari, said that if the assumption is that one network generates rp 1 trillion per year from the illicit business, the assets of the 72 drug networks could reach rp 72 trillion per year.2 meanwhile, when looking at the population aspect, indonesia has a population of more than 200 million people with a fairly large proportion of young people (about 40 percent) with a relatively low 1 didik ariyanto, putusan pengadilan negeri sebagai novum pengajuan peninjauan kembali pada tindak pidana narkotika. 13 (2021) 2 kompas, http://megapolitan.kompas.com/read/2016/08/19/16473361 http://journal.unnes.ac.id/sju/index.php/jils http://megapolitan.kompas.com/read/2016/08/19/16473361 jils (journal of indonesian legal studies) volume 6(2) 2021 441 available online at http://journal.unnes.ac.id/sju/index.php/jils level of prosperity or economy. this is a huge market potential for the illicit trafficking of narcotics and psychotropic substances and encourages traffickers who want to get rich quick with less effort.3 since 1998 there have been indications that indonesia is no longer just a transit country, but is already a destination country, even for psychotropics, indonesia can be said to be a source country (place of production). the problem of illegal trade and narcotics crime is a very complex problem because there are 3 (three) factors that cause the increase in the illegal circulation of narcotics, namely weak interdiction capacity which will result in an increase in the risk of illicit narcotics trafficking, an increase in narcotics abuse, and a lack of cooperation between enforcement agencies. law, both national and international, which results in a lack of effectiveness in the implementation of interdiction tasks. based on this, it is not wrong to say that narcotics crimes are transnational in nature which are carried out using high modus operandi, advanced technology, supported by an extensive network of organizations, and have caused many victims, especially the nation's young generation which is very dangerous to the life of the community, nation. and the state so that law number 22 of 1997 concerning narcotics is no longer in accordance with the development of the situation and conditions that develop to overcome and eradicate these criminal acts. instead, law number 35 of 2009 concerning narcotics (hereinafter referred to as the narcotics law) was issued which regulates narcotics and psychotropics. the purpose of law number 35 of 2009 concerning narcotics as regulated in article 4, namely: 1. guarantee the availability of narcotics for the benefit of health services, and/or the development of science and technology. 3 ar. sujono & bony daniel, komentar dan pembahasan undang nomor 35 tahun 2009 tentang narkotika, 19 (2013). http://journal.unnes.ac.id/sju/index.php/jils 442 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. prevent, protect, and save the indonesian people from narcotics abuse. 3. eradicating illicit trafficking of narcotics and narcotic precursors. 4. guarantee the arrangement of medical and social rehabilitation efforts for narcotics abusers and addicts. the general explanation of law number 35 of 2009 concerning narcotics states that narcotics are substances or drugs that are very useful and necessary for the treatment of certain diseases, but if misused or used not in accordance with treatment standards, they can have very detrimental consequences for individuals or society. especially the younger generation. based on the description in the explanation, it clearly shows that narcotics are really needed in human life, namely for treatment. but what is dangerous is when narcotics are misused in a way that is not in accordance with the rules of circulation. in this case what is prohibited is the abuse and illicit trafficking of narcotics. regulations and threats for narcotics abuse are regulated in the narcotics law, including those regulated in the provisions of the narcotics law: article 112 paragraph (1) "without rights or against the law owning, storing, controlling or providing narcotics category i is not a plant". article 114 paragraph (1), namely "without rights or against the law, offering for sale, selling, buying, receiving, intermediary in buying and selling, exchanging or delivering narcotics category i"; the minimum fine is rp. 800,000,000,(eight hundred million rupiah) and a maximum fine of rp. 8,000,000,000,(eight billion rupiah). criminal fines that are not paid by the perpetrators of narcotics crimes will be replaced with imprisonment according to the provisions: http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 443 available online at http://journal.unnes.ac.id/sju/index.php/jils article 148, namely "if the criminal penalty as stipulated in this law is not paid by the perpetrator of the crime of narcotics and narcotics precursor, the perpetrator is sentenced to a maximum imprisonment of 2 (two) years as a substitute for a fine that cannot be paid.". based on this formulation, perpetrators of criminal acts tend to prefer to undergo imprisonment as a substitute for fines. in the narcotics law, narcotics users are also referred to as victims of the narcotics circulation. due to the increasing number of narcotics trafficking, the more abusers or addicts are ensnared. therefore, the state/government in this case intervenes in the prevention and eradication process, but also in the massive rescue/protection process for the young generation who have become victims of narcotics. this is also the basis for the establishment of a special agency, namely the national narcotics agency (bnn) with the main task of dealing with narcotics problems, not only prevention and eradication, but also to the rescue/rehabilitation stage for people who have been exposed to narcotics abusers or addicts. the government also provides a large enough budget to build rehabilitation homes, and cooperates with public and private hospitals to help save victims of narcotics abusers or addicts. with regard to someone who is proven to be a narcotics abuser, the person concerned is obliged to undergo medical rehabilitation and social rehabilitation. this can be seen in article 127 of the narcotics law, namely:: 1. any abusers: a. narcotics category i for oneself shall be sentenced to a maximum imprisonment of 4 (four) years; b. narcotics category ii for oneself shall be sentenced to a maximum imprisonment of 2 (two) years; and c. narcotics category iii for oneself shall be sentenced to a maximum imprisonment of 1 (one) year. http://journal.unnes.ac.id/sju/index.php/jils 444 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. in deciding the case as referred to in paragraph (1), the judge must pay attention to the provisions as referred to in article 54, article 55, and article 103. 3. in the event that the abuser as referred to in paragraph (1) can be proven or proven as a victim of narcotics abuse, the abuser is obliged to undergo medical rehabilitation and social rehabilitation. however, in practice, especially in the first instance court, article 127 of the narcotics law is rarely used, judges and prosecutors tend to use article 112 of the narcotics law, which says that: “any person who without rights or against the law owns, keeps, controls, or provides narcotics category i which is not a plant, shall be punished with imprisonment for a minimum of 4 (four) years and a maximum of 12 (twelve) years and a minimum fine of rp800,000,000. ,00 (eight hundred million rupiah) and a maximum of rp. 8,000,000,000.00 (eight billion rupiah)”. the frequent use of this article in every judge's decision and the demands of the public prosecutor in narcotics crimes is accompanied by strong reasons, in addition to fulfilling the elements in article 112 of the narcotics law, it is also due to the fact that the defendant's trial or the defendant's attorney cannot prove that the defendant is a victim of narcotics abuser. as required by article 127 of the narcotics law.4 in terms of demands by the public prosecutor, it is known that the application of article 112 of the narcotics law as a primary claim in many narcotics crimes is because the elements in article 112 of the narcotics law have been fulfilled, namely: 4 i made tambir. pendekatan restorative justice dalam penyelesaian tindak pidana di tingkat penyidikan. 4 jmhu (jurnal magister hukum udayana), 8 339358. (2019) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 445 available online at http://journal.unnes.ac.id/sju/index.php/jils 1. everyone that what is meant by everyone is every person individually as a supporter of rights who is able to account for his actions before the law and for that it is required to have spiritual or mental health of the person concerned and an age limit so that that person can be subject to criminal sanctions. 2. without rights or against the law. that this second element is alternative, meaning that if one of the components of the element has been proven, then what is desired by that element is fulfilled, and the component of elements without rights or against the law must be directed against acts of using narcotics based on article 7 of the republic of indonesia law number 35 of 2009 concerning narcotics, determines that narcotics can only be used for the benefit of health services and / or the development of science and technology while in the provisions of article 41 of law of the republic of indonesia number 35 of 2009 it is stated that narcotics category i only can be distributed by certain pharmaceutical wholesalers to certain scientific institutions for the benefit of developing science and technology. from the provisions of the articles above, it is clear that narcotics category i is only allowed to be used for the benefit of health services and / or the development of science and technology, and its distribution can only be distributed by certain pharmaceutical wholesalers so that using or distributing narcotics outside the above provisions is contrary to laws or regulations which are also referred to as against the law. 3. possessing, storing, controlling or providing narcotics category i what the author described also happened in the case with the defendant andy suntoro who was tried at the surakarta district court with decision number: 125/pid.sus/2017/pn skt where based on the court's decision the defendant was at that time found http://journal.unnes.ac.id/sju/index.php/jils 446 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils guilty and proven legally and convincingly. guilty of committing the crime of “owning, storing narcotics category i” and therefore with imprisonment for 4 (four) years and 6 (six) months and a fine of rp. 800,000,000,(eight hundred million rupiah) provided that if the fine is not paid, it will be replaced with imprisonment for 1 (one) month.5 then after some time the convict through his legal counsel submitted an application for judicial review to the supreme court (ma) which the supreme court granted the request and then the supreme court tried again, through decision number: 244 pk/pid.sus/2018 with a command: 1. to declare that the convict andy suntoro has been legally and convincingly proven guilty of committing the crime of “abuse of narcotics class i for yourself”. 2. imposing imprisonment for 1 (one) year and 6 (six) months. however, the author's question is when talking about extraordinary legal remedies for judicial review, the main conditions that must be met as stipulated in article 263 of the criminal procedure code (hereinafter referred to as kuhap) are: 1. against a court decision that has obtained permanent legal force, unless the decision is acquitted or released from all legal claims, the convict or his heirs may submit a request for review. back to the supreme court. 2. requests for reconsideration are made on the basis of: a. if there are new circumstances that give rise to a strong suspicion, that if the situation was known at the time the trial was still ongoing, the result would be an acquittal or an acquittal of all lawsuits or the demands of the public prosecutor could not 5 see decision number 125/pid.sus/2017/pn.skt http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 447 available online at http://journal.unnes.ac.id/sju/index.php/jils be accepted or lighter criminal provisions were applied to the case ; b. if in various decisions there are statements that something has been proven, but the things or circumstances as the basis and reasons for the decisions which are stated to have been proven, are in fact contradicting one another; c. if the decision clearly shows a judge's error or a real mistake. 3. on the basis of the same reasons as referred to in paragraph (2), against a court decision which has permanent legal force, a request for reconsideration can be submitted if in that decision an act that has been accused has been declared proven but is not followed by a conviction. article 263 paragraph (2) of the criminal procedure code clearly states that the pk request was submitted based on a new situation (novum) and so on, but the pk petition submitted by andy suntoro through his attorney and granted by the supreme court was only limited to explaining the decision of the previous district court judge without being followed up. with corroborating evidence. the decisions of the previous district court judges include: 1. decision on case number 462/pid.sus/2017/pn.skt 2. decision on case number 454/pid.sus/2017/pn.skt 3. decision on case number 10/pid.sus/2018/pn.skt 4. decision on case number 36/pid.sus/2018/pn.skt however, if borrowing a statement from one of the notions of jurisprudence, soebekti said that the definition of jurisprudence is the decisions of judges or courts that are permanent and justified by the supreme court (ma) as a court of cassation, or the decisions of the supreme court itself are permanent. therefore, it would not be appropriate if the court's decisions at the first level as the author described above are considered as jurisprudence. however, the question arises, then what is the basis for the judge to accept the http://journal.unnes.ac.id/sju/index.php/jils 448 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils application for judicial review in the narcotics crime case with a novum in the form of previous judges' decisions at the first level court. here, the author describes the decisions that are used as the basis for the pk application in the form of legal considerations in the district court's decision: 1. decision on case number 454/pid.sus/2017/pn.skt regarding the abuse of narcotics by brother (hereinafter referred to as br) irawan kusuma that the pk-2 novum, the judge in his consideration related to the element of "abusing narcotics category i type of shabu for considering, whereas based on the statements of the witnesses and the defendant, it was found that the defendant irawana kusuma alias irawan bin darseno on wednesday, october 11, 2017 at around 15.30 wib was arrested by the police in front of the bca center point jalan slamet riyadi purwosari surakarta:…… .; considering, whereas based on these facts, the panel of judges is of the opinion that the element of "abusing class i narcotics type shabu for oneself" has been fulfilled in the series of actions of the defendant; considering, that because all the elements of the subsidiary indictment have been fulfilled, the series of actions of the defendant, the defendant must be declared legally and convincingly guilty of committing a criminal act of abusing class i narcotics for himself "so that the sentence handed down against the defendant is in the form of imprisonment for 1 (one) year (evidence of 4 packets of methamphetamine weighing 0.596 grams and 1 inex).6 2. decision on case number 10/pid.sus/2018/pn.skt which decided that mr. ari yudianto als suwung in the case of the narcotics 6 look at the considerations and rulings on the decision on case number 454/pid.sus/2017/pn.skt http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 449 available online at http://journal.unnes.ac.id/sju/index.php/jils crime where that the pk-3 novum is the judge in his consideration regarding the element for oneself; considering, whereas the element "for oneself" contains the meaning that the narcotics abuser of class i type of methamphetamine does not have the intention of persuading or offering to other people to participate in abusing narcotics but solely for himself; considering that from the testimony of the witnesses related to the testimony of the defendant at trial, there was no legal fact that the defendant wanted to sell or trade the shabu he had taken, but that the shabu was solely for the defendant's own consumption; considering, that from the series of actions of the defendant, it was related to the defendant's intention to buy methamphetamine with the intention of consuming it himself, which turned out to be when the defendant was arrested by officers from the narcotics unit of the surakarta police and then during the search of the defendant the officer found, then in the search at the defendant's house and in the room of the house found 1 (one) small transparent package containing methamphetamine which was stored in the front right pocket of black jeans hanging in the room, a glass pipette with shabu residue/crust was found in jeans,…., so according to the panel of judges, the defendant did not have any intention to offer methamphetamine to others but solely to be used for himself; considering, based on the description, the defendant's actions are legally and convincingly proven guilty of committing a "criminal act of narcotics abuse of class i for himself". so that the verdict handed down against the defendant is in the form of imprisonment for 1 (one) year (evidence 1 small plastic shabu).7 7 look at the considerations and rulings on the decision on case number 454/pid.sus/2017/pn.skt http://journal.unnes.ac.id/sju/index.php/jils 450 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 3. decision on case no. 36/pid.sus/2018/pn.skt dated march 8, 2018 on behalf of chris-tian adi nugroho alias babahong bin sudarwanto. whereas the pk-4 novum, the judge in his consideration relates to the elements of each class i narcotics abuser: considering, that from the legal facts that were revealed at the trial as mentioned by the panel above, it has been found that: that …..;; considering, that based on the description of the legal facts as mentioned, it has been found that the defendant is not one of the people who has the right to use the methamphetamine and the suspected ecstasy/index, because the defendant does not have a permit or legal document related to ownership/control. a number of methamphetamine and goods suspected of being ecstasy/inexperienced and not undergoing medical treatment or rehabilitation and the defendant's intention to buy methamphetamine and goods suspected of being ecstasy/inexist is solely for personal consumption, not for trading. the judge in his considerations regarding the elements for himself: considering, that based on the legal facts as already considered in element 1 (one), where the defendant has purchased methamphetamine from tromol with the intention of being consumed by himself; considering, that from the series of actions of the defendant, it was related to the defendant's intention to buy methamphetamine with the intention of being consumed by himself, which turned out to be when the defendant was arrested by officers from the narcotics satres of the surakarta police and then searched the defendant, the police officers found shabu in purpose, so that instructions can be obtained that the shabu weighing 0.139 grams is planned to be used entirely by the defendant there is no intention to offer shabu to others, but solely to be used for himself; http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 451 available online at http://journal.unnes.ac.id/sju/index.php/jils considering, that from the description of the considerations above, according to the panel of judges, the defendant's actions have fulfilled the "for oneself" element, thus the 2nd (two) element has also been fulfilled according to law; considering, that because all the elements of the article indicted by the public prosecutor as in the subsidiary public prosecutor's indictment have been fulfilled, the defendant's actions must be declared to have been legally and convincingly proven based on valid evidence and therefore found guilty of committing a criminal act as stated in -the purpose of the subsidiary public prosecutor's indictment, with the qualifications of a criminal act as will be stated in the verdict. so that the verdict handed down against the defendant was in the form of imprisonment for 1 (one) year and 4 (four) months (evidence 1 small plastic shabu, 5 inex pills). 4. decision on case no. 462/pid.sus/2017/pn.skt dated december 20, 2017 on behalf of edi susanto alias kemin bin marjani. whereas the pk-1 novum, the judge in his consideration related to the elements of having abused narcotics class i for himself: based on the facts revealed at trial, the statements of the witnesses, and the testimony of the defendant, the fact that the defendant used or consumed shabu-shabu was obtained. the last time on ……, that the act of using or consuming narcotics class i (shabu) is a narcotics abuser of class i for himself, because the defendant does not have a permit/prescription from a doctor or legal document from the authorities, to commit the crime. the act; considering based on the description, the defendant's actions have been legally and convincingly proven guilty of committing a "criminal act of abusing class i narcotics for himself" as regulated in article 127 paragraph (1) letter a of the law of the republic of indonesia number 35 years. 2009 on narcotics-ka; so that the verdict handed down against the http://journal.unnes.ac.id/sju/index.php/jils 452 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils defendant is in the form of imprisonment for 1 (one) year (evidence 1 small plastic shabu). in addition, the granting of the pk application on the basis of a novum in the form of a previous first-level court decision is also deemed inappropriate considering that if you intend to examine the judge's error in applying the law, the instrument in the form of an element of judge's oversight in deciding can be used as an option as accommodated in article 263 paragraph (2) letter c kuhap.8 based on the background of the problems that have been described above, the problems that can be raised to be further studied and investigated in more detail in this study are "how is the ideal reconstruction of a review in a criminal case on the grounds of a novum?" comparison of novum arrangements in american & french criminal procedure the american criminal procedure code does not recognize the term novum, but if new evidence or testimony is found that was not known at the time of trial, a new trial will be held to examine new evidence or testimony submitted by the convict.9 this provision has changed since the 1993 death penalty case (herrera vs. collins), the supreme court determined that new evidence leading to a plea of not 8 muhar junef, forum of makumjakpol-narcotic national board-the ministry of health-the ministry of social affairs in handling of narcotics crime. 3 jikh (jurnal ilmiah kebijakan hukum), 11. 394–423 (2017) 9 muladi, kapita selekta sistem peradilan pidana, 108. (1995) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 453 available online at http://journal.unnes.ac.id/sju/index.php/jils guilty was no reason for the federal court to order a new trial. this is because:10 in any event, because the defendant has already been found guilty, the presumption of innocence no longer applies during the appellate process, and the burden of showing why the conviction should be overturned shifts to the defendant. so, if new evidence or facts are found that are submitted by the convict to reverse the court's decision, the convict can ask the court to hold a new trial based on the new evidence or facts, without closing the possibility for the federal court to hold an appeal. according to the united states legal system, the party entitled to appeal is the defendant who is dissatisfied with the court's decision and hopes that a higher court can give a more just or appropriate decision. the public prosecutor could not appeal because it would lead to a second prosecution of the same case (double jeopardy) which is prohibited in the united states constitution. most states deal with this by providing opportunities for public prosecutors to appeal only to pre-trial or post-conviction rulings.11 therefore, new evidence or facts can only be submitted by convicts who have been found guilty by the court. in this case, it can be seen that in the pk legal system in america, the main requirement in filing a pk is new evidence or new facts. unlike in indonesia, which still has multiple interpretations related to the meaning of the word novum in the criminal procedure code (kuhap). 10 kahn-freund; levy; dan rudden. a source-book on french law, 3rd ed., 73 (1991) 11 muladi, supra note 9. http://journal.unnes.ac.id/sju/index.php/jils 454 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils on the other hand, in the context of the french state, it is known that france has a dual system of courts with different jurisdictions between general courts (judicial courts) and administrative courts. the judicial courts are under the authority of the cour de cassation as the highest court. the cour de cassation in france has the same function and position as the supreme court in indonesia, namely as the highest state court of all judicial circles that fosters uniformity in the application of law so that all laws and laws are applied fairly, precisely and correctly. the cour de cassation does not examine the facts but rather the application of the law that has been applied by the judiciary under it. courts under the cour de cassation include the cours d'appel (court of appeal or in indonesia also known as the high court); tribunaux de grande instance (court of first instance with general jurisdiction), which when it comes to criminal cases are called tribunaux correctionnels; tribunaux d'instance (court with limited jurisdiction); and several other special courts.12 not different from indonesian procedural law, french procedural law recognizes legal remedies such as appeal, cassation, cassation for legal purposes and review. legal efforts for review in french procedural law are referred to as revisions. both legal efforts are equated because they have the same philosophical basis. provisions regarding revision are regulated in article 622 to article 625 of the french penale code de procedure (criminal procedure law).13 article 622 of the penal code de procedure stipulates that a revision of a final criminal decision may be submitted for the benefit of a person who is found guilty of a crime or offense which: 12 kahn-freud, supra note 10. 13 oemar seno adji, herziening, ganti rugi, suap, perkembangan delik. 99 (1981). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 455 available online at http://journal.unnes.ac.id/sju/index.php/jils 1. after the verdict for the crime of murder is handed down, documents that are likely to give rise to the suspicion that someone suspected of being a murder victim is still alive. 2. after the verdict or verdict is handed down, whether it is a crime or a violation, the court of first instance or an appeal has rendered a decision with the same charge on a different defendant, because the verdict is different, then the conflicting decision becomes evidence that one of the parties or parties who have been found guilty will become not guilty. 3. since the verdict was handed down, one of the witnesses who testified has been charged and sentenced to give false testimony against the defendant; the witness will not be heard at the new trial. 4. after the verdict is handed down, a new fact emerges or is discovered that was not previously known by the court in the trial, which is likely to raise doubts or doubts about the guilt of the convict. when compared with the provisions of the indonesian criminal procedure law which broaden the notion of novum as the basis for filing a pk, the french criminal procedure law narrows the notion of novum or fait nouveau as the basis for filing a revision. novum as the basis for pk according to indonesian criminal procedure law can be anything as long as it is not known beforehand and has the quality to change the judge's decision ideal formulation of novum arrangements in criminal justice judicial review in criminal procedural law is a right granted by law to the convict or his heirs with the aim of providing an http://journal.unnes.ac.id/sju/index.php/jils 456 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils opportunity for the convict who is sentenced in a case to apply for a decision that has permanent legal force to be annulled with the argument that the decision contrary to the real situation.14 the term judicial review (pk), which was previously known as herziening, is a bit difficult to define because the criminal procedure code does not provide a definition of this term, so several legal experts have tried to provide a definition of pk. according to soenarto soerodibroto, as quoted by parman soeparman:15 herziening is a review of criminal decisions that have obtained definite legal force which contains a sentence, which cannot be applied to decisions where the accused has been released (vrijgrespoken). it is different with the opinion of andi hamzah and irdan dahlan, as quoted by parman soeparman, who define pk as:16 "the right of the convict to ask to correct a court decision that has become permanent, as a result of the judge's error or negligence in making his decision". when considering the two definitions put forward, the definition expressed by andi hamzah emphasizes the party who can apply for a pk, namely the convict. meanwhile, soenarto soerodibroto emphasized more on the decisions that the pk could request. kuhap stipulates provisions for judicial review in articles 263 to 269 of the criminal procedure code. these articles contain matters concerning decisions that can be requested for a pk, the 14 stefanus roy rening, pembaharuan politik hukum peninjauan kembali dalam perkara pidana dan perlindungan hak asasi manusia di indonesia, 110 (2019). 15 parman soeparman. pengaturan hak mengajukan upaya hukum peninjauan kembali dalam perkara pidana bagi korban kejahatan, cet.1, 73 (2007) 16 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 457 available online at http://journal.unnes.ac.id/sju/index.php/jils reasons for submitting a pk, procedures for submitting a pk, the principles in a pk and the forms of decisions in a pk. article 263 paragraph (1) of the criminal procedure code states "against court decisions that have permanent legal force, except for decisions that are acquitted or free from all lawsuits...". broadly speaking, some of the contents of article 263 paragraph (1) of the criminal procedure code can be divided into two elements. the first element contains the conditions for filing a pk legal action, namely a court decision that has obtained permanent legal force. court decisions in this case include decisions made by all court institutions, starting from the district court, high court, to the supreme court. all decisions of the judicial institutions can be requested for pk, as long as they meet the requirements, namely they have permanent legal force and as long as this has not happened, pk legal remedies cannot be used.17 as an extraordinary legal remedy, the criminal procedure code limits the reasons on which the pk is filed. this is regulated in article 263 paragraphs (2) and (3) of the criminal procedure code. mangasa sidabutar divides the basic requests for pk legal remedies into two groups based on the time (moment) the emergence of the intended things, namely:18 1. based on things that really only emerged after the court examination or the court ended (after the court or court gave a decision), namely things in the form of new circumstances or novum. this provision is regulated in article 263 paragraph (2) letter a of the criminal procedure code. 17 m. yahya harahap, pembahasan, permasalahan dan penerapan kuhap: pemeriksaan sidang pengadilan, banding, kasasi dan peninjauan kembali, cet. 2, 220. (2001). 18 mangasa sidabutar, hak terdakwa, terpidana, penuntut umum, menempuh upaya hukum, cet. i, 164 (1999). http://journal.unnes.ac.id/sju/index.php/jils 458 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 2. based on things that have actually appeared or existed at the time or while the examination is still ongoing. so before the court or the court gives a decision, but it is only found out after the decision occurs, the provisions of which are regulated in article 263 paragraph (2) letters b and c and paragraph (3) of the criminal procedure code. the basis for the first-mentioned pk request in the criminal procedure code is the existence of a new situation or novum. a new situation that can be used as the basis for a request for a pk is a new situation that has the nature and quality of "raising a strong suspicion".19 the second reason is that in various decisions there are conflicts. this reason is a takeover of article 356 paragraph (1) number 1 rsv which is adapted to article 263 paragraph (2) letter b of the criminal procedure code. the three main elements contained in it are the statement that something has been proven; then a statement regarding the proof of this matter is used as the basis and reason for the decision in a case; however, in the decisions of other cases, the things that are stated to be proven contradict each other between the decisions. so, it can be concluded that the contradictions contained in the various decisions that will be reviewed must be really real in nature, in this case based on a fact or condition that is legally proven. based on article 263 paragraph (2) sub c of the criminal procedure code, an application for pk legal remedies can also be submitted if there is a judge's error or an obvious error in the decision that is requested for review. the basis for filing a pk legal action on this one caused a lot of debate during the formulation of the criminal procedure law plan. in the rsv there is no provision that the judge's oversight and obvious error is one of the reasons for submitting herziening. this is different 19 m. yahya harahap, supra note 11. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 459 available online at http://journal.unnes.ac.id/sju/index.php/jils from perma no. 1/1969 which contains reasons for the judge's oversight and obvious mistakes as one of the bases for submitting a pk. in 1980, the supreme court was considered to be thinking back to the rsv period when it issued perma no. 1/1980 because the perma did not include reasons for judges' oversight or obvious mistakes as the basis for submitting a pk application. the submission of a pk can also be based on the conditions as stipulated in article 263 paragraph (3) of the criminal procedure code, namely if in the decision an act that has been accused has been declared proven but is not followed by a conviction. parman soeparman relates this reasoning to the need to give the attorney general the right to file a pk request. according to him, "convicts who are not sentenced will certainly not be in a hurry to ask for a pk".20 however, the question is, whether the decision of the previous district court can be submitted as a novum in the request for review, as happened in the judicial review decision number: 885/tu/2019/244 pk/pid.sus/2018 in which the judge accepted and granted application for reconsideration with a novum submitted in court in the form of a previous district court judge's decision. this can be seen in the decision for judicial review and the memorandum of review submitted by the convict through his attorney, which states that in this application for judicial review, the applicant submits a new situation that gives rise to a strong suspicion (novum) which, if it had been known at the time of the trial, was still ongoing. , then in this case a lighter criminal provision is applied. that the novum is in the form of a copy of the decision on a narcotic crime case which includes: 1. decision number 462/pid.sus/2017/pn.skt 2. decision number 454/pid.sus/2017/pn.skt 3. decision number 10/pid.sus/2018/pn.skt 20 parman soeparman, supra note 15. http://journal.unnes.ac.id/sju/index.php/jils 460 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils 4. decision number 36/pid.sus/2018/pn.skt. in order to answer this question, the author conducted a literature search related to the meaning of novum, and the characteristics of the novum, it is known that the term novum (singular form) or novi (plural form) which comes from latin.21 grammatically it means something new or new facts, including new legal conditions.22 novum in latin has the full term noviter perventa, which means "newly discovered facts, which are usually allowed to be introduced in a case even after the pleadings are closed".23 article 263 paragraph (2) of law number 8 of 1981 concerning the criminal procedure code (kuhap) mentions the term novum with "new circumstances" as one of the reasons or the basis for submitting a judicial review (pk). the definition of a new situation or novum as the basis for submitting a pk is not explicitly given by the criminal procedure code which only provides limitations when a new situation is considered a novum, namely: “if there are new circumstances that give rise to a strong suspicion that if the situation had been known at the time the trial was still ongoing, the result would be an acquittal or a verdict of acquittal of all lawsuits or the demands of the public prosecutor could not be accepted or lighter criminal provisions were applied to the case”. it can be concluded that a new situation or novum as the basis for submitting a pk is a new condition or novum that fulfills the elements, namely having the power to change the judge's decision 21 mangasa sidabutar, hak terdakwa, terpidana, penuntut umum, menempuh upaya hukum, cet. i, 164 (1999). 22 van dale lexicografie bv., van dale handwoordenboek nederlandsengels ver. 1.0, 3rd ed., 118 (2003). 23 bryan a. garner, ed., black’s law dictionary, 7th ed., 217 (1999). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 461 available online at http://journal.unnes.ac.id/sju/index.php/jils and being known after the trial process ends. the provisions regarding the novum as the basis for submitting a pk application in the colonial law are contained in article 457 rsv. in indonesian legal products, prior to the enactment of the criminal procedure code, the elucidation of article 15 of law (uu) number 19 of 1964 concerning the basic provisions of judicial powers has alluded to the novum which is known as nova. the definition of nova is the same as what is currently called novum, namely "new facts or circumstances, which at the time of the previous trial, did not appear or received attention". not much different from the formulation of the criminal procedure code and law number 19 of 1964, hadari djenawi tahir provides the following definition of novum:24 “a new thing that arises later after a court decision has obtained permanent legal force that has never been discussed before or has never been questioned in court. the novum had never been known before by the judge examining the case, while the new situation, either alone or in relation to the previous evidence, could not be adjusted to the judge's decision, thus giving rise to a strong suspicion that if the situation had been known at the time of the while the trial is still in progress, the court's decision will be different from the decision that has been taken”. the definition of novum based on the opinion of hadari djenawi tahir is not limited to new evidence, but is broader, namely a new matter that is known or emerged after the judge's decision has permanent legal force. hadari djenawi tahir also emphasized that the word 'new' must be compared with the circumstances that were discussed at the time and during the trial process where the decision 24 hadari djenawi tahir. bab tentang herziening di dalam kitab undang-undang hukum acara pidana. 95 (1982) http://journal.unnes.ac.id/sju/index.php/jils 462 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils was not yet final and binding. the judge who has the authority to decide a case before the decision is legally binding is considered not to know the circumstances other than those in question in the trial, so it is the duty of the interested parties to bring the matter to trial. the element known in article 263 paragraph (2) letter a of the criminal procedure code has the meaning that it has never been discussed in the trial because it has not been questioned by one of the parties. starting from the provisions of article 263 paragraph (2) letter a of the criminal procedure code, the elements of the novum as the basis for submitting a judicial review can be divided into two discussions, namely the scope of the novum related to the element of 'new circumstances' and the strength or quality of the novum related to the element of 'generating strong suspicions'. '. article 263 paragraph (2) letter a of the criminal procedure code explicitly mentions the term novum with new conditions so that the scope of the novum is much wider and not only limited to new evidence found. in some community opinions, there is often a misinterpretation of the mention of the term novum which is interpreted as new evidence. new evidence can be referred to as novum, but novum cannot be called or interpreted as new evidence, because it has a broader meaning than that, namely new circumstances. a new situation that is not included in the category of evidence according to the provisions of the criminal procedure law and has legal consequences for the judge's decision is also included in the scope of the novum as the basis for submitting a pk. novum in the form of new evidence is a number of new evidence as determined in a limited manner by law. indonesian criminal procedure law distinguishes two types of evidence, namely evidence and evidence. the criminal procedure code as a general law (lex generalis) divides evidence into five types, namely witness testimony, expert testimony, letters, instructions and http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 463 available online at http://journal.unnes.ac.id/sju/index.php/jils statements of the defendant. in addition to the five types of evidence mentioned, there are other types of evidence that are specifically regulated by law outside of the criminal procedure code. for example, in law number 25 of 2003 concerning the crime of money laundering, information and documents are also recognized as evidence. in contrast to evidence, the regulation of evidence is not explicitly stated in the criminal procedure code, so there are many doctrines that have developed in defining evidence. in short, martiman prodjohamidjojo defines evidence or corpus delicti as evidence of a crime.25 in contrast to martiman prodjohamidjojo, legal scholars such as ansori sabuan, syarifuddin petanasse and ruben achmad more specifically define evidence, namely:26 “evidence is goods used by the defendant to commit an offense or as a result of an offense, confiscated by investigators to be used as court evidence”. meanwhile, sudarsono argues that "evidence is an object or goods used to convince the judge of the defendant's guilt in the criminal case handed down to him”.27 so it can be said that evidence is items related to criminal acts and contain elements of evidence. in addition to providing their respective definitions, legal scholars also relate the provisions in article 39 paragraph (1) of the criminal procedure code which regulates the provisions regarding confiscated objects as the definition of evidence according to the criminal procedure code. article 183 of the criminal procedure code stipulates that evidence that can be the basis for a judge to make a decision is evidence, while evidence does not have the power of proof and only serves as a support for the evidence. in imposing a sentence, 25 martiman prodjohamidjojo, pembahasan hukum acara pidana dalam teori dan praktek. 19 (1982) 26 ansori sabuan, et.al., hukum acara pidana. 23 (1990). 27 sudarsono, kamus hukum cetakan kedua. 32. (1999). http://journal.unnes.ac.id/sju/index.php/jils 464 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils the judge is bound by the minimum provisions of proof, namely that there are at least two valid pieces of evidence. based on the two pieces of evidence, the judge obtained the belief that the defendant was guilty of committing the crime that occurred. in connection with article 183 of the criminal procedure code, the judge is also bound by the minimum provisions of evidence in terms of imposing a criminal if the pk application submitted is based on the reason for the existence of a novum in the form of new evidence in the form of evidence, as stated by the panel of judges in the decision of the supreme court number 109 /pk/pid/2007 with former defendant pollycarpus. the panel of judges in their consideration held the following opinion:28 “is a valid evidence, because the information is in accordance with article 185 and article 186 of the criminal procedure code, which is a new situation as referred to in article 263 paragraph (2) letter a of the criminal procedure code, which can be used as material in forming the evidence guide”. based on the explanation of the novum above, the author feels that he has found reasons and arguments that are quite clear regarding the reasons why district court decisions can be used as a novum in a pk application for narcotics crimes, among which the author will describe as follows: 28 look supreme court decision number 109/pk/pid/2007 dated january 25, 2008. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 465 available online at http://journal.unnes.ac.id/sju/index.php/jils i. substances that are still unclear regarding the characteristics of novum the character of modern law is identical to legal positivism, where the law is required to be written, firm and clear. the position of the written law tends to be substantial because it is an instrument used for the enforcement of the law itself. the teaching of legal positivism began in the 18th century and became stronger along with the progress of the modern state which was marked by the very rapid development of science and technology. the birth of the modern state as a sovereign territorial organization, here is related to the background of these social changes, and will be more clear in the economic field. therefore, the combination of technological progress, industrialization and capitalism is moving so fast. the presence of a state that provides a centralized structure and is supported by modern law, then the need for industrialization that is hungry for central management land can be overcome.29 the impact of the development of this understanding on indonesia, with the influence of the teachings of legal positivism, emerged the rigidity of legal rigidity which is considered that the law in indonesia is not able to create justice, the source of the dominance of the paradigm of positivism and modern legal science.30 we know legal doctrines inspired by the teachings of positivism such as: "equality before the law or justice for all" (all are equal before the law), making these doctrines which are good in theory, but not in fact, the 29 asep bambang hermanto, ajaran positivisme hukum di indonesia: kritik dan alternatif solusinya, 4 js (jurnal selisik) 2, 89-112. (2016) 30 fx aji sameko, keadilan versus prosedur hukum: kritik terhadap hukum moden, 73 (2011) http://journal.unnes.ac.id/sju/index.php/jils 466 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils law is only sharp towards the law. downward and blunt law upward, because the law is not neutral. the operation of the law is strongly influenced by other forces. the main character of modern law is its rational nature. rationality is characterized by the procedural nature of rules. procedural thus becomes an important legal basis for upholding justice, safeguarding human rights, and finally procedures become more important than talking about justice which is the substance of the law itself.31 article 263 paragraph (2) letter a of the criminal procedure code stipulates that a novum that can be used as the basis for filing a judicial review is a novum with circumstances that can give rise to a strong suspicion, where if the situation is known while the trial is still ongoing, the result will be an acquittal or a acquittal of all lawsuits or demands of the public prosecutor cannot be accepted or to that case lighter criminal provisions are applied. based on these provisions, a novum will deserve to be accepted as the basis or reason for submitting a judicial review if it is qualified, i.e. it has the determining power to change the previous judge's decision which has permanent legal force. departing from article 263 paragraph (2) letter a of the criminal procedure code, it can be seen clearly that there is no confirmation of what is included in the novum, finally various interpretations and views of legal experts become the judge's reference in looking at the meaning of the novum.32 for example, in the view of p.a.f lamintang who stated that the novum was interpreted using the systematische interpretatie at 31 lili rasjidi, dinamika situasi kondisi hukum dewasa ini dari perspektif teori dan filosofikal, 4-5. (2009) 32 this can be seen from the decision of the supreme court judge based on the pk decision nmber 71/pk/pid/2005 on behalf of the convict margelap as a pk applicant who submitted the regional regulation (perda) of the pamekasan madura regency government number 9 of 2001 concerning procedures for nomination, election, inauguration and dismissal of village heads as novum. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 467 available online at http://journal.unnes.ac.id/sju/index.php/jils the time of the pk application by the supreme court decision number 109/pk/pid/2007 with the former defendant pollycarpus with the novum in the form of expert testimony presented by the defendant. the purpose of p.a.f lamintang's interpretation in the form of a systematische interpretatie is to find a relationship between part of a law and the law itself.33 this serves to see the relevance of articles 184, 185, 186, and article 263 paragraph (2) of the criminal procedure code, in submitting applications for judicial review. where the review can be carried out on the grounds that there is a novum in the form of new evidence in the form of evidence. as for the evidence, it is stated in article 184 of the criminal procedure code, namely: a. legal evidence is: 1) witness testimony 2) expert testimony 3) letter 4) hint 5) the defendant's statement. b. what is generally known does not need to be proven. article 185 of the criminal procedure code, namely: 1) witness testimony as evidence is what the witness stated in court. 2) the testimony of a witness alone is not sufficient to prove that the defendant is guilty of the act he is accused of. 3) the provisions as referred to in paragraph (2) shall not apply if accompanied by other valid evidence. 4) the statements of several witnesses who stand alone regarding an event or condition can be used as a valid evidence if the witness testimony is available. the relationship with one another 33 p.a.f. lamintang dan c. djisman samosir, delik-delik khusus kejahatan yang ditujukan terhadap hak milik dan lain-lain hak yang timbul dari hak milik, 89 (2010) http://journal.unnes.ac.id/sju/index.php/jils 468 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils is such that it can justify the existence of a certain event or situation. 5) neither opinion nor fiction, which is obtained from the result of thought alone, is not a witness statement. 6) in assessing the truth of the testimony of a witness, the judge must pay serious attention to it. a) the correspondence between the testimony of one witness to another, b) conformity between witness testimony and other evidence, c) reasons that may be used by witnesses to give certain information, d) the way of life and morality of the witness as well as everything that in general can affect whether or not the information can be trusted. 7) statements from witnesses who are not sworn in even though they are in accordance with one another are not evidence, but if the information is in accordance with the statements of witnesses who are sworn in, they can be used as additional legal evidence. article 186 of the criminal procedure code: "expert testimony is what an expert states in a court hearing", and article 263 paragraph (2) letter a of the criminal procedure code: “if there is a new situation (novum) which gives rise to a strong suspicion, that if the situation was known at the time the trial was still ongoing, the result would be an acquittal (vrijspraak) or an acquittal decision (ontslag van alie rechtsvolging) or the prosecution's claim was not acceptable (niet ontvvankelijk verklaring) or to the case lighter criminal provisions are applied”. based on the interpretation of p.a.f lamintang, it can be said that what is meant indirectly by novum is what the criminal procedure code says is evidence as stipulated in article 184 of the criminal procedure code. in contrast to the view of komariah http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 469 available online at http://journal.unnes.ac.id/sju/index.php/jils sapardjaja which states that:34 "novum is never the same as one another because it can take the form of anything, for that reason, the proposed novum is really a substantial new thing". komariah is of the view that the benchmark of a novum is what is presented before the court and the extent to which the quality of the novum is concerned with liberating in what form the novum is. in addition, in assessing the novum submitted, the judge is also bound by the facts or circumstances that were revealed during the trial before the decision has permanent legal force. the substance that komariah emong sapardjaja said was related to the fulfillment of the elements of the crime committed. novum which is accepted as the basis or reason for submitting a pk must have the quality of eliminating errors if it is submitted by the convict as an applicant for pk. if the applicant for pk is not a convict or his heirs are interested, then the novum submitted must have appropriate quality in fulfilling the elements of a criminal act based on the provisions of the legislation. so, the assessment of the quality of the novum that is submitted to be accepted as the basis for submitting the pk is related to the elements of the criminal act that was indicted against the convict or former defendant or it can be said that the assessment of the quality of the novum is very casuistic. article 263 paragraph (2) letter a of the criminal procedure code requires that a novum that can be accepted as the basis for submitting a pk is a novum with a quality that leads to the condition for an acquittal, or the condition for the decision to be free from all legal claims, or the conditions for the prosecution's claim cannot be accepted, or which apply lighter criminal provisions. mangasa sidabutar interprets article 263 paragraph (2) letter a of the criminal procedure code as:35 34 muladi, kapita selekta sistem peradilan pidana, 91 (1995) 35 mangasa sidabutar, hak terdakwa, terpidana, penuntut umum, menempuh upaya hukum, cet. 1, 125 (1999) http://journal.unnes.ac.id/sju/index.php/jils 470 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils “so, in compiling the basis for the reason for reconsideration in the form of a novum or novi, it must really show concrete things that lead to the existence of strong evidence that is a condition for an acquittal, or a condition for a decision to be free from all lawsuits, or a condition for a decision or determination to be granted an acquittal. stating "the demand of the public prosecutor is unacceptable" or the terms of the decision containing a lighter criminal provision”. based on this view, we can conclude that there are 2 (two) major views from experts in indonesia in viewing the novum, as a condition for submitting an application for reconsideration (pk), which include: a. in the event that the pk novum application submitted is evidence, and b. in the case that the pk novum application submitted is not only bound as evidence (free) as long as it has a correlation with the decision and has the quality as a novum. ii. the principle of judges may not reject cases (principle of ius curia novit) in the dynamics of everyday life, conflicts often occur in society. conflicts that occur often cannot be resolved by the parties involved. to be able to resolve the conflict, it is often necessary to intervene by a special institution that provides an objective resolution, the resolution of which is of course based on objectively applicable guidelines. this function is usually carried out by an institution called the judiciary, which is authorized to examine, assess and make decisions on conflicts. this authority is known as judicial power which in practice is carried out by judges.36 thus, it is clear that the 36 firman floranta adonara, prinsip kebebasan hakim dalam memutus perkara sebagai amanat konstitusi, 2 jk (jurnal konstitusi) 12, 365-393 (2015) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 471 available online at http://journal.unnes.ac.id/sju/index.php/jils judge or judges have great power over the disputing parties regarding the problem or conflict that is brought before the judge or judges. however, this also means that the judges in carrying out their duties fully bear a great responsibility and must be aware of this responsibility, because the judge's decision can have far-reaching consequences on the lives of other people affected by the scope of the decision. an unfair judge's decision can even leave an imprint on the minds of the yastisinbel concerned throughout his life journey.37 as the author explained earlier, it is related to the lack of clear understanding and regulation of the novum in the case of a judicial review application (pk) in a criminal case which leads to various different interpretations between law enforcers.38 differences in interpretation that arise either by judges, public prosecutors or advocates cause each of them to have their own criteria which often contradict one another regarding the meaning and purpose of the novum in the pk application in criminal procedural law. the open space for interpretation which is so wide and without any standard guidelines will be problematic when it is clashed with the ius curia novit principle which is derived from article 5 paragraph (1) of law number 48 of 2009 concerning judicial power (hereinafter referred to as the judicial law), which means the interpreter sole lies in one judge. the judge as the final decision maker is considered to know the law so that he cannot refuse the case because of the unclear rules.39 instead, they must continue to make decisions by exploring, following and understanding legal values and a sense of justice that live in 37 suhrawardi k. lubis, etika profesi hakim, 42 (2002) 38 yuristyawan pambudi wicaksana, implementasi asas ius curia novit dalam penafsiran hukum putusan hakim tentang keabsahan penetapan tersangka, 1 lr (lex reinnaisance), 3. 19-38. (2018). 39 m. natsir asnawi, hermeneutika putusan hakim, cetakan pertama, 78. (2014) http://journal.unnes.ac.id/sju/index.php/jils 472 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils society.40 the principle of ius curia novit views that every judge knows the law and must try every case that is brought to him. this principle was first discovered in the writings of medieval jurists (glossators) on ancient roman law. based on this, the question from the author is answered regarding why the previous decision can be used as a novum in a criminal case review application, regardless of the lack of clarity or still floating regulations regarding the novum in article 263 paragraph (2) letter a of the criminal procedure code which causes differences interpretation among legal experts, also in the end opens space for judges to adopt one of these expert interpretations (either pro or contra) in the court decisions being tried by him. the ius curia novit principle, as described above, is important to pay attention to, especially in terms of granting the decision of the previous district court judge as a novum in the pk application to prevent further wild interpretations of the definition of novum in criminal justice in indonesia which ultimately leads to legal uncertainty. iii. reconstruction of novum arrangements in criminal cases as it is known, that in the history of judicial review (pk) is not known in criminal justice, pk has just been adopted in the instrument of criminal procedural law as very extraordinary legal tools that should not be used arbitrarily, therefore when opened (herzien inlandsch reglement) hir never had the term pk in the regulation. in historical records, pk was only adopted in criminal procedural law in 40 h.a. mukhsin asyrof, “asas-asas penemuan hukum dan penciptaan hukum oleh hakim dalam proses peradilan”, 2 varia peradilan, 21. 19-41. (2006) http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 473 available online at http://journal.unnes.ac.id/sju/index.php/jils the world as a result of the drives case that occurred in france in 1936. where drives was accused of leaking secrets in the first world war which was then sentenced to life and some time later found a novum which proved that actually drives are not the perpetrators of the crime who are then released.41 according to eddy o.s hieariej, the common mistakes made in the judicial review of criminal cases in indonesia is that in indonesia, judicial review is generally considered a level 4 (fourth) court. according to the person concerned, because the pk will change the court's decision which has permanent legal force, then in all countries in the world in the pk legal effort, the case will be examined by all the supreme judges and minus the chief justice who examines the case at the cassation level (if the case has been up to the level of appeal). based on these historical and comparative factors, the authors conclude that as a very extraordinary legal instrument, the pk instrument should only be taken in circumstances that should have an indication of errors in making decisions or the discovery of a novum that has the quality to at least reduce the detention period of the convict. the author's view is in line with the opinion conveyed by mangasa sidabutar which interprets article 263 paragraph (2) letter a of the criminal procedure code as:42 “so, in compiling the basis for the reason for reconsideration in the form of a novum or novi, it must really show concrete things that lead to the existence of strong evidence that is a condition for an acquittal, or a condition for a decision to be free from all lawsuits, or a condition for a decision or determination to be granted an acquittal. stating "the demand of the public prosecutor is unacceptable" or the 41 eddy o.s hiearij, “membedah kasus djoko tjandra dan peluang dilakukannya contra peninjauan kembali”. 5 (2020) 42 mangasa sidabutar, hak terdakwa, terpidana, penuntut umum, menempuh upaya hukum, cet. 1, 125 (1999) http://journal.unnes.ac.id/sju/index.php/jils 474 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils terms of the decision containing a lighter criminal provision”. thus the author describes the quality of the novum referred to above, including: a. novum which leads to the terms of acquittal. the novum that leads to the conditions for an acquittal relates to the elements of a criminal act that are proven and declared to have been fulfilled in the previous trial. this is based on the opinion of mangasa sidabutar who stated that:43 “the appointment of this relevant novum must really be aimed at not proving all elements or part of the elements of the criminal act charged with which of course will bring legal consequences in the form of an acquittal”. regarding the acquittal, article 191 paragraph (1) of the criminal procedure code stipulates that the acquittal is the result obtained from a trial in which the guilt of the defendant for the actions he is accused of is not legally and convincingly proven. the convict of the crime of murder who was convicted under article 338 of the criminal code (kuhp) submitted a novum in the form of a laboratory result letter indicating that the victim had died before the convict killed him. the proposed novum can cause the element of "taking other people's lives" to be unfulfilled. b. novum which leads to the condition that the decision is free from all lawsuits novum with quality that leads to the condition of the decision being free from all lawsuits is a novum in the form of special circumstances that result in the defendant not being able to be sentenced to a criminal sentence because the act that was accused was proven to be true but not a criminal act, because the law governing the criminal act that was charged at the time the 43 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 475 available online at http://journal.unnes.ac.id/sju/index.php/jils occurrence of the defendant's actions is no longer valid (revoked)44, or the defendant cannot be sentenced because he applies the basis for the elimination of the crime, namely the excuse for forgiveness or justification as regulated in articles 44, 48, 49, 50 and 51 of the criminal code.45 c. novum leading to the prosecution of the public prosecutor is unacceptable. according to hadari djenawi tahir, the decision by the public prosecutor to be unacceptable is:46 a statement from the judge stating that the public prosecutor's claim was rejected on the grounds that there was insufficient reason to continue the examination. the difference with other acquittals is that in "the public prosecutor's claim cannot be accepted" the judge's refusal with a decision is made at the beginning of the trial, while other acquittal decisions are made at the end of the trial. the existence of "the public prosecutor's decision cannot be accepted due to differences of opinion between the public prosecutor and the judge regarding the basis of prosecution". based on this understanding, it can be taken as an example of a novum which leads to a decision that the public prosecutor's claim cannot be accepted, namely a novum in the form of a fact stating that the complaint letter, in the case that the case is a complaint offense case, was actually made by an unauthorized person. if this fact is known by the judge before the case has 44 id. 45 soedirjo. peninjauan kembali dalam perkara pidana: arti dan makna, cet. 1, 21. (1986) 46 hadari djenawi tahir. bab tentang herziening di dalam kitab undang-undang hukum acara pidana. 75 (1982) http://journal.unnes.ac.id/sju/index.php/jils 476 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils permanent legal force, then according to a reasonable estimate, the judge will declare the public prosecutor's claim to be unacceptable. d. novum which leads to a verdict with lighter criminal provisions. regarding the quality of this novum, soedirjo argued: “not every novum that results in the adoption of a lighter sentence is sufficient for review. there must be a legal basis in the law to reduce the crime (wettelijke strafverminderingsgrond), which causes the maximum penalty (those threatened by law) to be reduced.”. meanwhile, mangasa sidabutar linked this novum with changes to the law regarding the sanctions applied. according to him: "what was found was that at the time the decision was handed down, there had actually been a change in the "sanction" (sanctie) which became the basis for the decision of the court concerned". taking into account the two opinions, soedirjo's opinion contains a broader meaning or limitation compared to mangasa sidabutar's opinion which specifically states that the novum in this case is in the form of changes to the law regarding lighter sanctions for the same crime to the convict. therefore, based on this explanation, the judge must be observant in seeing whether a material presented as a novum has accommodated the qualities stated above. as a comparison as the previous author's explanation, the understanding and qualifications of the novum in the criminal procedure code (kuhap) have not been clearly and firmly regulated whether it is included in the evidence section or can be separated from it, so that various interpretations arise from experts. law and culminate in the judge's efforts to make legal discoveries (rechtvinding) as a result of the void or multiple interpretations of the norms regarding the novum. the novum in france is the first country in the world to http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 477 available online at http://journal.unnes.ac.id/sju/index.php/jils accommodate the pk instrument in the french penale code de procedure (french criminal procedure code). not different from indonesian procedural law, as a result of historical factors, the civil law or continental european legal system adopted by indonesia is a legal system originating from france. the french state implemented its legal system in the netherlands, as a colony, which was later applied to indonesia as a dutch colony, so that the indonesian legal provisions were not so much different from the french legal provisions. french procedural law recognizes legal remedies such as appeals, cassation, cassation in the interest of law and judicial review. legal efforts for review in french procedural law are referred to as revisions. both legal efforts are equated because they have the same philosophical basis. provisions regarding revision are regulated in article 622 to article 625 of the french penal code de procedure.47 article 622 of the penal code de procedure stipulates that a revision of a final criminal decision may be submitted for the benefit of a person who is found guilty of a crime or offense which: a. after the verdict for the crime of murder is handed down, documents that are likely to give rise to the suspicion that someone suspected of being a murder victim is alive b. after the verdict or verdict is handed down, whether it is a crime or a violation, the court of first instance or an appeal has rendered a decision with the same charge on a different defendant, because the verdict is different, then the conflicting decision becomes evidence that one of the parties or parties who have been found guilty are innocent . c. since the verdict was handed down, one of the witnesses who testified has been charged and sentenced to give false testimony 47 oemar seno adji, herziening, ganti rugi, suap, perkembangan delik. 18 (1981) http://journal.unnes.ac.id/sju/index.php/jils 478 jils (journal of indonesian legal studies) volume 6(2) 2021 available online at http://journal.unnes.ac.id/sju/index.php/jils against the defendant; the witness will not be heard at the new trial. d. after the verdict is handed down, a new fact emerges or is discovered that was not previously known by the court in the trial, which is likely to raise doubts or doubts about the guilt of the convicted person. based on article 622 of the penale code de procedure, it can be said that france is firm in providing the prerequisites for submitting a judicial review in criminal cases, the provisions regarding the novum which in french is called the term fait nouveau are also expressly conveyed, especially in article 622 of the penale code de procedure, paragraph 1, 3, and 4. as for paragraph 2 in article 622 of the penale code de procedure, this is for the indonesian criminal procedure code which regulates the pk requirements, it can be found in article 263 paragraph (2) letter b, namely: “if in various decisions there are statements that something has been proven, but the things or circumstances as the basis and reasons for the decisions that are stated to have been proven have contradicted each other”. what the author means is in accordance with the view of oemar seno adji which states that the basis for the submission of the revision above (les cas de revision), the second is the basis which according to the indonesian criminal procedure code is called a judicial conflict, or in french procedural law it is called la contrariete. de jugements.48 48 id. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 6(2) 2021 479 available online at http://journal.unnes.ac.id/sju/index.php/jils conclusion in this study, the author makes several comparisons with the criminal procedure code (america and france) and concludes based on these comparisons that the novum arrangement in the application for judicial review must be clearly and unequivocally regulated in the criminal procedure code, because both countries have their respective criminal procedural laws. explicitly states that in the case of a pk application, it must be based on new facts and evidence which, if presented at the previous trial, has the potential to reduce or even abort the prosecution's charge. references adji, o. s. 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(2018). implementasi asas ius curia novit dalam penafsiran hukum putusan hakim tentang keabsahan penetapan tersangka. lex renaissance, 3(1), 86-108. ttps://doi.org/10.20885/jlr.vol3.iss1.art3 http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.24843/jmhu.2019.v08.i04.p09 https://doi.org/10.20885/jlr.vol3.iss1.art3 attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf23932ada209d • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf2395382620cd • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare attention required! | cloudflare please enable cookies. sorry, you have been blocked you are unable to access unnes.ac.id why have i been blocked? this website is using a security service to protect itself from online attacks. the action you just performed triggered the security solution. there are several actions that could trigger this block including submitting a certain word or phrase, a sql command or malformed data. what can i do to resolve this? you can email the site owner to let them know you were blocked. please include what you were doing when this page came up and the cloudflare ray id found at the bottom of this page. cloudflare ray id: 7fbf2394cd3320fd • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare