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 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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 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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 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 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), 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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. 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. 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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and mechanism of law dispute resolution using the principle of pancasila based on local wisdom”, jurnal dinamika hukum, january 2016, 16(1); 24-30. the 1945 constitution (uud 1945). wisnubroto, al. kebijakan hukum pidana dalam penanggulangan penyalahgunaan komputer. yogjakarta: universitas atmajaya, 1999. widjoyanto, bambang. “politik hukum pidana dalam sistem hukum nasional”, online handout, 2014, retrieved from http://www.bphn.go.id/data/documents/politik_hukum_pidana_dala m_sistem_hukum_nasional_revisi.ppt, accessed on 7 november 2013 yusriando. “implementasi mediasi penal sebagai perwujudan nilai-nilai pancasila guna mendukung supremasi hukum dalam rangka pembangunan nasional”, jurnal pembaharuan hukum, 2015, 2(1): 2345. https://doi.org/10.1051/shsconf/20185402012 http://www.bphn.go.id/data/documents/politik_hukum_pidana_dalam_sistem_hukum_nasional_revisi.ppt http://www.bphn.go.id/data/documents/politik_hukum_pidana_dalam_sistem_hukum_nasional_revisi.ppt 87 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. 87-104 issn 2548-1584 e-issn 2548-1592 provision of elimination of tax administrative sanctions in indonesia on 2008 and 2015 case: establishment of tax law putri anggia 1 putri anggia faculty of law, universitas gadjah mada, yogyakarta, indonesia jalan sosio justisia, no. 1, bulaksumur, sleman yogyakarta  putrianggia_email_address@yahoo.com article info abstract submitted on may 2016 approved on september 2016 published on november 2016 elimination of administrative sanctions or sunset policy on 2008 intended to achieve the target of tax revenue and to strengthen the data base by providing incentives in the form of taxation, was not done due diligence measures. removal of administrative sanctions in 2015 was motivated by the goal of achieving the target of tax revenue and more specific purpose, namely as a continuation next year, the year of law enforcement. removal of administrative sanction was not in accordance with the theory of devotion. implementation of the elimination of administrative sanction give leeway to the taxpayer to foster a sense of obligation to pay taxes, so it tends to keep the runway taxation in the theory of filial piety. keywords: sunset policy, elimination of administrative sanction, tax law 1 m.h., universitas gadjah mada, magister ilmu hukum (mih ugm), 2016. i am grateful thank the editorial boards of journal of indonesian legal studies (jils), faculty of law universitas negeri semarang. mailto:putrianggia_email_address@yahoo.com 88 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang putri anggia jils i (1) november 2016, 87-104 http://journal.unnes.ac.id/sju/index.php/jils introduction basically, taxpaying has been carried out since the colonial period by using the term different but the same principle, levies by the state against its citizens coercive. 2 with the development of era, policies of taxation changes from time to time that is in accordance with the development of society and the state both in the state and in the socio-economic field. as presented by kc wheare in his book the modern constitution and quoted by mahfud md: constitution, when they are framed and adopted, growing niche to reflect the dominant beliefs and interest, or some compromise between conflicting beliefs and interest, the which characteristic the society at that time... a constitution is indeed the resultant of parallelogram of forces political, economic and social the which-operate at that time of its adoption. from this argument, mahfud md concluded that the constitution which in the broadest sense includes all the legislation in the organizing country) is the resultant (product of political agreement) in accordance with the political, economic, and social at the time of established. meaning that, at configuration of political, social, economy and culture is very influential or define the product constitution and legislation. 3 in the area of taxation can be considered to change, improvement, and development of the provisions of the legislation which is certainly influenced and motivated by the configuration of the political, social, economic, and cultural. the tax legislation reform over the years become a proof of the opinion that kc wheare. considering to the development of tax legislation (which creates a tax reform) is, in the world of taxation indonesia also deformed/ concept of policy implementation. the policy involves the application of the abolition of the administrative sanction has been done two times in different moment. the same policy and with the same purpose which is to achieve the target revenue from taxation. in 2015 the government launched a program of coaching taxpayers year, president joko widodo explained that the purpose of coaching is to bring awareness to the taxpayer in order to dutifully pay tax. ministry finance, bambang brodjonegoro reported that of the 250 million population of indonesia, which should have a taxpayer identification number as many as 44,000 .000 population, but only 26 million inhabitants are have npwp and only 10 million taxpayers to report tax via the notice 2 art. 23a, constitution of 1945 3 mahfud m.d, 2014, politikhukum di indonesia, rajawali press, jakarta, p. 6. 89 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 (spt). 4 declaration of taxpayers year,2015 to increase state revenue through taxes. in the first quarter of 2015 (january-march) of state revenue through taxes is only about rp.170 trillion or 13% of the 2015 target of rp.1,294 trillion. finance minister, bambang brodjonegoro said that the lack of tax revenue due to tax compliance (wp, wajib pajak) which does not submit its obligations. the ministry of finance will conduct training and improve the record of payment that has been done in the last five years for taxpayers who already have a npwp and reporting obligations on a regular basis. the directorate general of taxation will announce the data wp personal are not intensively to pay tax in the period of last five years to pay off its obligations, without penalty. 5 without fines is meant by the implementation of the abolition of the administrative sanctions, fines is one form of sanctions administration in the field of taxation other than interest. many factors that lead to such a target is not reached behind the introduction to the program of taxpayers year guidance (tahun pembinaan wajib pajak). this program is one of the implementation or agenda to be implemented by performing the removal of administrative sanctions. but, due to reach the target of course there are other factors that support for the implementation of this administration back in the removal of sanctions. whereas earlier in 2008 also implemented sunset policy yas a policy is the same, the elimination of administrative sanctions implemented for the first time in 2008. of course, in 2008 there are a variety of factors that support the implementation of the abolition of administrative sanctions. based on this background, the authority to assess the removal of sanctions policy of the tax administration in 2015 and comparing with the sunset policy on 2008 thus will be obtained differences between the two policies to eliminate the administrative sanction. furthermore, this difference will be used as the basis of analysis the author to recommend improvements in the administration of the removal of sanctions policy settings in the future. the second problem formulated that in regard to the theory of devotion in taxpaying principle. policy as a concrete legal norms and policies is a manifestation of the abstract norms. the elimination of administrative sanctions in the area of taxation is a policy that is poured into a rule (in this case general provisions of tax act and its implementing regulations). sudikno mertokusumo stated that, legal principle does not concrete legal norms, but rather a concrete regulatory background and are general or abstract. 6 principle of law can be found in the articles of the statutory 4 directorate general of tax and finance, “presiden jokowi canangkan tahun pembinaan wajib pajak”, http://www.pajak.go.id/content/flash-foto/presiden-jokowicanangkan-tahun-pembinaan-wajib-pajak, accessed on 10 september 2015. 5 berita satu, “jokowi canangkan tahun pembinaan wajib pajak 2015”, http://www.beritasatu.com/ekonomi/269612-jokowi-canangkan-tahun-pembinaan-wajib-pajak 2015.html, accessed on 10 september 2015. 6 sudikno mertokusumo, 1999, mengenal hukum suatu pengantar, liberty, yogyakarta, p. 35. http://www.pajak.go.id/content/flash-foto/presiden-jokowi-canangkan-tahun-pembinaan-wajib-pajak http://www.pajak.go.id/content/flash-foto/presiden-jokowi-canangkan-tahun-pembinaan-wajib-pajak http://www.beritasatu.com/ekonomi/269612-jokowi-canangkan-tahun-pembinaan-wajib-pajak%202015.html http://www.beritasatu.com/ekonomi/269612-jokowi-canangkan-tahun-pembinaan-wajib-pajak%202015.html 90 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang putri anggia jils i (1) november 2016, 87-104 http://journal.unnes.ac.id/sju/index.php/jils regulations if legal principles set forth in the form of concrete regulatory or legal principle can also be found indirectly. 7 principles of law have two functions, namely the function of the law and function in legal science. a legal basic always be based on its existence on the formulation of forming laws and judges, while principle in the science of law aimed at giving an overview, not normative in nature and does not include the positive law. 8 on this basis according to the author can be used as a foothold to assess the second time the implementation of policies removal of sanctions of tax administration, which certainly pursed with the principle of special laws in the field of taxation. analysis on elimination of tax adminitrative sanction opinion of kc wheare at the previous, was strengthened by hamzah halim and kemal redindo who argued that the law is not the subsystems are autonomous and neutral but instead are influenced by many factors and interests. 9 in the study of legal science there are at least three factors into parameter legislation could apply as well, namely: has the basic validity of the juridical, sociological, and philosophical. 10 starting from the above explanation, setting the elimination of administrative sanctions will be analyzed based on three aspects of this (the judicial aspect, the aspect of sociological and philosophical aspects). juridical aspects the first is juridical aspects that will be discussed on the basis of the legal period of validity. according to article 37a of act no.28 of 2007 on general provisions and tax procedures expressly written and enacted in legislation that is determined to tackle the elimination of administrative sanctions in 2008 that applies to the payment of tax debts in the previous year. removal of sanctions of administrative 2015 are governed by the provisions of article 36 of law no. 16 of 2009 on general provisions and tax procedures, where the articles do not set the validity period of the abolition of administrative sanction so that the provisions of the validity period applied according to the setting in the implementation regulations, namely regulation finance. 7 ibid. 8 ibid.,p. 36. 9 hamzah halim dan kemal redindo s.p, 2013, cara praktis menyusundan merancang peraturan daerah, kencana, jakarta, p. 1. 10 ibid. 91 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 provisions expiry implementation of the abolition of administrative sanction in 2008 had previously been planned, given the authorization of the act requires a process starting from (i) a pre-legislation (planning the establishment of a law/bill; the preparation of a bill consisting of study, research, and academic papers, techniques and mechanisms of the drafting of laws) (ii) stage of legislation (discussion of the bill by the house of representatives and the government; attestation, establishment and enactment, (iii) post-legislation (documentation of act, dissemination of texts of laws, education, implementation). 11 in 2015, the legal basis for the removal of sanctions the administration is setting the validity period determined by the minister of finance, in which the minister of finance is a legal product that has legal force as the implementing regulations. the implementing regulations were developed after there is a mandate of the regulations on it. the ministerial regulation which formed on the basis of orders of the law categorized as legislation on the basis of delegation (delegated legislation). a. hamid s. attamimi in his thesis, stated that: legislation delegation is legislation that is formed on the basis of legislation orders higher. the formation process of legislation is also classified as not through the same stage with the law, tend to be simple on condition their removal/handover of authority to establish rules of the holder of the authority of delegans to the delegataris with responsibility the exercise of authority. 12 in this case the handover of authority from the president to the finance minister. regulation of the minister of finance is legislation in accordance referred to in law no. 12 of 2011 on the establishment of legislation, namely the legislation that recognized and have binding legal force throughout ordered by legislation that is higher or established by the authority. 13 description above described that the elimination of administrative sanctions in 2008 planned to determine a period of implementation of the elimination of administrative sanctions 2015. the legal basis for the elimination of administrative sanctions in 2015 governing the validity period is the regulation of the minister of finance, while the administrative sanctions elimination in 2008 concerning the validity of act. it can be concluded that there is no basis consistent consideration to the legal basis used to set the validity period of the implementation of the elimination of 11 siti masitah, 2013, “urgensi naskah akademik dalam pembentukan peraturan daerah”, jurnal legislasi indonesia vol. 10 no. 02 – june 2013: 109-122, p. 109. 12 a. hamid s. attamimmi, 1990, “peranan keputusan presiden republik indonesia dalam penyelenggaraan pemerintahan negara: suatu studi analisis mengenai keputusan presiden yang berfungsi pengaturan dalam kurun waktu pelita i – pelita vi”, dissertation, graduated school, universitas indonesia, jakarta, p. 347. 13 art. 8 of (2) act no. 12 of 2011 concerning to laws and regulation establishment 92 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang putri anggia jils i (1) november 2016, 87-104 http://journal.unnes.ac.id/sju/index.php/jils administrative sanctions. regulation in the formation process was more simples and carried out by the authorities (ministry) which is the delegation of the president. elimination of administrative sanctions should be the same as the tax amnesty, in which the formulation of the formation of its provisions carried out discussions with parliament. so the legal product produced is of the act, for the elimination of administrative sanctions a major impact both on the taxpayer obedient and who enjoy this administrative sanctions removal policy. so the element of fairness should also be achieved. juridical aspect secondly, the implementation of the psa in 2008 in the future will be the end of the implementation of this policy, the government tends to maintain its commitment by issuing laws that decree (government regulation in lieu of law) no. 5 of 2008 regarding fourth amendment of law no. 5 of 1983 general provisions and tax procedures, because the decree (perpu) have the same position with the act. 14 perpu as the regulation set by the president in matters of urgency that forces, 15 in the preamble part, explained about the background of the publication of the decree, which is “…in order to face the impact of global financial crisis, it is urgent to strengthen the national tax base to support the state’s revenue from the tax sector is more stable,” 16 this means that: (1) the existence of the state of the global financial crisis in which the circumstances are pushing to resolve because urgent that needed solving quick legal under the act. this provision showed a consistent attitude the government at that time by changing the legislation with equal legal product legal position by act that decree. (2) laws that already exist are adequate but the material validity period changes needed for a more extended than the period of validity. removal of administrative sanctions which was originally a one-year extended to 14 months due to external circumstances that on the first point and driven state in which the taxpayer utilizing removal sanctions this administration at the end of the period of validity, 17 so much taxpayer who want to use it but can be hampered due to the expiration date while the government was then forced by external circumstances the impact of the global financial crisis. (3) the urgency in the form of global financial crisis affecting the national financial and require certainty to be resolved as soon as possible so it can 14 art. 7 (1) subsection c, act no. 12 of 2011 concerning to laws and regulations establishment 15 art. 22 (1) constitution of 1945 16 subsection (a), on the konsideran of perpu no. 5 of 2008 regarding fourth amendment of law no. 5 of 1983 general provisions and tax procedures 17 dahliana hasan, op.cit. 93 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 not follow the making of the act in accordance with the existing procedures, the government took a policy issuance decree. perpu published proofed enormous commitment and consistency of the government at the time of the arrangement elimination of administrative sanctions in 2008. the third judicial aspect, article 37a of the rules established to deal with legal issues or fill a legal vacuum by considering the existing rule that is where setting the elimination of administrative sanctions that already exist, namely article 36. yet it cannot accommodate the objective of the government or the legislature at the time who want to provide incentives for the checking npwp voluntary, while the existing arrangement requires examination. sociological aspects the basic of sociological is the foundation that consists of facts that constitute society’s demands that drive the need for legislation, namely that there is something essentially needed by the community that need adjustment. 18 as known since the third amendment to the constitution of 1945, taxes stipulated in article 23a “taxes and other coercive for the purposes of the state governed by law.” the constitution of 1945 is basic rules/principal country/staatsgrundgezet which gives binding force to the legal norms laws invitation, or in other words outline the procedures for establishment of legislation which common binding. 19 sociologically applicable law, if such rules effective. meant that these rules can be enforceable by the authorities, although not accepted by society (theory of power), or earlier rules apply as accepted or recognized by the community (recognition theory). 20 sociological aspects first, setting on the elimination of administrative sanctions were previously carried out in 2008, held back in 2015. the background of this psa was revived as deemed successful implementation in 2008, the success of the annual income tax deemed delivered within the framework of the sunset policy until december 2008 was as much as 556 thousand spt with the value of tax payments of rp.5.56 trillion, 21 on this case there is the addition of 3.5 million taxpayers. the enthusiasm of the people who take advantage of the sunset policy up to very high in december 2008, an extension of up to two months later as many as 248 thousand spt submitted and managed to add 2.09 million new 18 hamzah halim and kemal redindo, op.cit, p. 25. 19 maria farida indrati soeprapto, ilmu perundang-undangan dasar-dasardan pembentukannya, kanisius, yogyakarta, 1993, pp. 30-31. 20 ibid.,p. 6. 21 directorate general tax, 2009, institutional report of 2008, department of finance, indonesia, jakarta, p. 25 94 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang putri anggia jils i (1) november 2016, 87-104 http://journal.unnes.ac.id/sju/index.php/jils taxpayer, the total amount of income tax payments of rp.7.40 trillion. 22 it can be concluded on the elimination of administrative sanctions provisions in 2008 can be accepted by taxpayers. tax ration, 20082012 23 tax ratio, taxation a. tax ratio, central tax (regional + natural resources) to pdb (%) 15,76 15,48 14,58 14,30 18,59 b. tax ratio, central tax (regional + central resources) to pdb (%) 13,12 12,60 11,95 11,82 14,06 n c. tax ration of central tax to pdb (%) 12,34 11,77 11,24 11,06 13,31 source: basic data apbn 2007-2013 and bps table above showed that from year to year for tax ratio central taxes which experienced ups and downs even the most high in 2008, the year of implementation of the sunset policy. it depends on the objectives underlying the implementation of the elimination of administrative sanctions, if the implementation of the elimination of administrative sanctions aimed to specifically increase the income tax sector in 2008, the administrative sanctions removal is relatively successful. however, due to the success was not followed in subsequent years (tax ratio tends to decline and unstable), it can be concluded that the implementation of the administrative sanctions removal is limited in the short term only. at the sunset policy implementation in the form of administrative sanctions removal echoed only implemented in 2008, but in fact the government to implement back in 2015. sociologically it affects the understanding or interpretation of the taxpayer against the removal of administrative sanctions. taxpayers need answers to questions (1) would it be held back elimination of administrative sanctions in the future. (2) is the tax administration sanctions will eventually be eliminated, if the offense in order to achieve the target revenue from the tax. (3) what are the advantages of paying taxes in an orderly manner, if ultimately conducted elimination of administrative sanctions against violators. to answer these questions, the government attempted to implement some of the follow up of the implementation of the elimination of administrative sanctions, such as those delivered by the director of 22 ibid. 23 directorate general of tax, 2011, institutional report of 2010, department of finance of indonesia, jakarta, p. 188. 95 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 counseling, services and public relations directorate general of taxation mekar satria utama, “we have a 5 year program. this year (2015) called year guidance, in 2016 years of law enforcement, in 2017 the year of reconciliation, seeking activities and deliver improved forgiveness and appreciation to the wp (tax amnesty), the year 2018 with the welfare of civil servants allowances boost purchasing power and prosperity, and in 2019 the independence of the state budget.” 24 one form of sovereignty of the people is the voice of the people is represented in the form of a council of representatives, where members of the house of representatives elected through general elections. 25 the house of representatives has the power to make law 26 and the law is a form of consensus /agreement between the people with the government. starting from the above explanation, as (1) the form of commitment to implement several planning the continuation of the elimination of administrative sanctions by the government to the people (2) the legal basis is strong to carry out planning the continuation of the elimination of administrative sanctions, it places a legal product through the trial process by house of representatives that act. preparation of the legislation is based on the aspirations and needs of the legal community. 27 the second sociological aspects of setting elimination of administrative sanction which involves empirical facts where the country needs to achieve the target of tax revenue and the spirit of the country to increase the registered npwp. 28 philosophical aspects according soerjono soekanto, law applies philosophically, that is to say in accordance with the ideals of law as a positive value the highest. 29 the philosophical ground of the judgment or the reasons which illustrate that the rules established to consider the views of life, consciousness, and the ideals of law which includes the atmosphere of mysticism and philosophy of the nation indonesia sourced from pancasila and the preamble to the constitution of the republic of indonesia of 1945. 30 every society has always had a "rechstidee", which is what the public expect from the law, for example, the law is expected to ensuring justice (gerechtigkeit), legal certainty (rechstssicherkeit), expediency 24 ministry of finance, pemerintah canangkan tahun pembinaan wajib pajak 2015, available at http://kemenkeu.go.id/berita/pemerintah-canangkan-tahun-pembinaanwajib-pajak-2015, accessed on 19 october 2015 25 art. 19 (2) constitution of 1945 26 art. 20 (1) constitution of 1945 27 art. 19(h) act no. 12 of 2011 concerning to laws and regulations establishment 28 document meeting of special committee (pansus) tax bill (ruu perpajakan), between dpr and ministry of finance ri, aspiration delivered by rama pratama se from pks party, monday, november 25, 2005. 29 hamzah halim and kemal redindo, op.cit. p.8. 30 attachment i of law no. 12 of 2011 concerning to laws and regulations establishment http://kemenkeu.go.id/berita/pemerintah-canangkan-tahun-pembinaan-wajib-pajak-2015 http://kemenkeu.go.id/berita/pemerintah-canangkan-tahun-pembinaan-wajib-pajak-2015 96 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang putri anggia jils i (1) november 2016, 87-104 http://journal.unnes.ac.id/sju/index.php/jils (zwekmassigkeit), and order, as well as well-being, where "rechstidee" this is the task of legal norms. 31 in accordance with the ideal and objective of the law which is the purpose of the tax law is to create justice in the matter of taxation. this principle of justice must always be adhered to, both in principles regarding the inviter-invitation, as well as in daily practice; where, according to santoso brotodihardjo this is the principal joints that should be considered well by any state to expedite his efforts on tax collection. 32 philosophical aspects of legislation explicitly can be found on the weighing and implicitly of course, can be found in the material section or clause enshrined in the legislation. elimination of administrative sanctions act regulated in the general provisions and tax procedures that basically both elimination of administrative sanctions in 2008 and 2015 have a same basis consideration as the abolition of administrative sanctions in 2015 have no legal basis article 36 of law no. 16 of 2009 which is an amendment of the act no. 28 of 2007, in which a change of one of them lies in the extension of the implementation of the elimination of administrative sanctions, namely article 37a. beep weigh preamble are as follows: that in providing justice and improve service to taxpayers and to give more legal certainty and to anticipate developments in the field of information technology and developments in the material provisions in the field of taxation is necessary to amend act no. 6 of 1983 on the general rules and tax procedures as amended by act no. 16 of 2000. 33 based on explanation above, the philosophical foundation of legislation on general provisions and tax procedures provide justice and for greater legal certainty. there are some meanings of justice in question, including during the formulation of the act kup submitted by members of the board: impartiality on the interest (in the discussion of changes in taxation law, each member of the board do not represent the interests of any party), the material of the tax law provides results that can truly be enjoyed by the people. 34 includes on uu kup contained provisions on the elimination of administrative sanctions should of course based on the settings to deliver justice and to give more legal certainty in the implementation of the administrative sanctions removal. as presented by ms. sri mulyani as minister of finance during the discussion of the bill ctp that the government is important is the tax revenue will always need to be improved and can be fully increasingly meet the needs 31 prof edward omar sharif hiariej, legal theories and philosophy of law course, 30 september 2015. 32 santoso brotodihardjo, 1984, pengantar ilmu hukum pajak, eresco, jakarta, p. 23. 33 see act no. 16 of 2009 34 pansus document, 21 november 2005 97 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 for financing the activities of the state including the financing of national expenditure. 35 however, the increase in tax revenue was based philosophical aspect in chapter and verse bill kup, where philosophical bill ctp is to reduce the overall tax burden that compliance was increased and thus “at the end” ultimately tax revenues will increase. 36 this is partly reflected in the policy of elimination administrative sanctions that the tax burden in the form of administrative sanction was abolished with the aim of taxpayer stimulated/encouraged to dutifully fulfill its obligations to pay the tax debt and eventually reached the target of tax revenue and foster a sense of adherence to the taxpayer. philosophical aspect hereinafter that the shifting of the meaning of justice in the original purpose of the removal of administrative sanctions, where article 36 starting from the beginning formed casuistry destined for the taxpayer which have or will fulfill the tax obligations but is constrained by reason of coercion then given a dispensation elimination of administrative sanctions by director general of taxation decision. in 2008 based on the newly formed article (article 37a) born out of a sense of justice in order to provide incentives to taxpayers who voluntarily avail the facility of administrative sanctions removal. however, in 2015 in the framework of article 36 administrative sanctions removal massively changed the meaning of justice. elimination of administrative sanctions as a means that government law enforcement program in the next year. the provision of elemination of tax administrative sanction: future perspective the provisions concerning the establishment of the legislation is set to act no. 12 of 2011, which was originally set on act no. 10 of 2004. the provision on the elimination of administrative sanctions in 2008 and 2015, both settings contained in the act and the general conditions tax procedures third amendment in 2007 and the constitution of the general provisions and tax procedures fourth change in 2009. both the law on general provisions and tax procedures were formulated based on law no. 10 of 2004 on the establishment of legislation. however, in the chapter on the principle of formation of legislation that either does not change regulated in chapter ii, article 5 and article 6 of the law on the establishment of legislation. contrary to the explanation above, although arrangements elimination of tax administration sanction is not regulated separately in the provisions of the act, but should be in accordance with the principle of the 35 pansus document, 27 may 2007. 36 enggartiato lukita, golkar party as reported on pansus document of bill of act of taxation (ruu perpajakan), 21 november 2005. 98 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang putri anggia jils i (1) november 2016, 87-104 http://journal.unnes.ac.id/sju/index.php/jils establishment of legislation which better in order to create harmony in each verse and chapter regulating the elimination of administrative sanctions contained principles the. the principle of the establishment of legislation that either: (a) clarity of purpose; (b) institutional or appropriate forming organs; (c) compatibility between types, hierarchy, and material content; (d) to be implemented; (e) usefulness and benefits; (f) clarity formulation; (g) disclosure. 37 further, the discussion at sub fifth chapter entitled setting the elimination of administrative sanction in the future explained with the principles of good legislation, that the principles of clarity of formulation of the problem, the principle foundation of clarity of the formulation, the principle can be implemented, the principle correspondence between the type and content material principle. the provisions on the elimination of administrative sanctions currently incorporated into the material chapter vii. chapter vii regarding specific provisions from article 32 to article 37, elimination of administrative sanctions stipulated in the provisions of article 36 and article 37a, in the second such article contained provisions regarding arrangements addressed to the tax authorities, the obligation for the minister of finance and the directorate general of taxation ( article 36a, 36b, 36c, 36d, 37). to make it easier to understand and establish unity in the arrangement, according to the foundation of clarity of formulation, that any legislation must meet the technical requirements of the preparation of legislation, systematic choice of words or terms, as well as the legal language that is clear and easy to understand so as not to cause a variety of a wide interpretation in its implementation. 38 there should compilation of setting the elimination of administrative sanctions made in a single article in order to form an understanding comprehensively integral understanding of the arrangement removal of administrative sanctions article 37a is different from the understanding of the regulation on the elimination of sanctions article 36 so that it can be used as the basis for a legal basis elimination of administrative sanctions implementation in a different time. the two are not contradictory, but in accordance with article 37a of socialization by the tax authorities that the sunset policy is only implemented in 2008, but with consideration and assessment that are not contrary to existing regulations, the sunset policy implemented back in 2015. it does not reflect the “foundation of formulation clarity”. the cornerstone of clarity formulation of a law can be analyzed from the process of formation. as we know that law established by the discussions were held in advance by the house of representatives as well as the uu kup. minister of finance as representative of the government in meeting bill special committee on taxation explained the main points of the draft changes to the 37 see art. 5, act no. 12 of 2011 concerning to laws and regulation establishment 38 explanation of art 5 subsection (f) law no. 12 of 2011 concerning to laws and regulation establishment 99 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 on general provisions and tax procedures, point to five submitted is “…given a chance to correct the notification letter to provide relief in the form of reductions or elimination of administrative sanctions on the condition that the correction is done in the first year of the enactment of this law...” 39 based on the formulation of the draft amendment of the law on the taxation embodied in article 37a of the basis of the implementation of the removal of administrative sanctions in 2008 (sunset policy). furthermore, the minutes of meetings of the committee until the signing of the bill on ctp not found the discussion on the formulation of an idea to be implemented back removal of administrative sanctions for the second time during the ctp act applies. however, the implementation of the removal of administrative sanctions both times its 2015 does not violate the rules for in article 36 paragraph (2) states that the provisions of article 36 paragraph (1) shall be regulated by or under the regulation of the minister of finance. 40 do not violate the rules on the grounds that the basic settings elimination of administrative sanctions article 36 is a policy, where policy can be implemented with consideration to adjust the situation and economic conditions were wrestling at that time or the policy applied to a case by case basis from the taxpayer. the formulation of the continuation of the removal of administrative sanctions is one manifestation of the cornerstone principles of the formation of good regulation, namely, can be implemented, that any legislation must take into account the effectiveness of the legislation within the community, either on philosophical, sociological, or juridical. 41 being ineffective on the grounds that the achievement of the target of the tax sector only achieved in the implementation of the removal of sanctions and the administration cannot be accepted if elimination of administrative sanctions implemented within the adjacent, so that the necessary arrangements emphatic about the continuation of the elimination of administrative sanctions. it is also to emphasize commitment of the government towards a policy program to be implemented in the future, given the many circumstances/conditions that can affect the running of the government. however, the elimination of administrative sanctions implemented in 2015 as one of the government's efforts to foster a sense of taxpayer compliance, so it is not solely aimed at achieving the target of tax revenue, so that the next government plans implemented in 2016 law enforcement. based on the exposure of the above legislation should take into account the effectiveness of the legislation within the community, 39 pansus document, of taxation bill of act, 21 november 2005, delivered by yusuf anwar as representative of financial minister. 40 mardiasmo, as representative of financial minister, on national seminar of optimizing of tax revenue: strategy and challenge, auditorium bri, faculty of economic and business, ugm yogyakarta, 7 november 2015. 41 explanation of art 5 subsection (d) law no. 12 of 2011 concerning to laws and regulation establishment 100 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang putri anggia jils i (1) november 2016, 87-104 http://journal.unnes.ac.id/sju/index.php/jils sociologically highly dependent on the results of the implementation of the elimination of administrative sanctions in 2015 were certainly in terms of the level of tax compliance, because elimination of administrative sanctions are of fundamental policy originally used to casuistry but used as a national policy. surely this should really be considered the power of his behavior in the community. other mismatches are found, i.e. on the substance of what was to become the authority at the level of the product in terms of legal regulation set the elimination of administrative sanctions for the implementation of the first and second differ significantly. the difference lies in the laws governing the period of validity of the removal of sanctions the administration so that it does not reflect the principle of the establishment of good regulation. correspondence between types, hierarchy, and the substance was found in the formation of legislation should really pay attention to the substance of the right according to the type and hierarchy of legislation. 42 this does not provide a disadvantage in practice but in addition to a lack of compatibility between types, hierarchy, and material content, as well as legal certainty is not reflected in it. legal uncertainty that occur are shown on their implementation of the inspection in which in 2008 established a legal basis for the implementation of the removal of sanctions administration with the purpose of inspection is not conducted in order to solicit taxpayer voluntarily register the npwp. whereas in 2015, the administrative sanctions removal carried out the legal basis of that examination will be undertaken to further the implementation of the government program (in law enforcement). although the policy of different materials and discretion on the basis of its implementation, according to the opinion writer legal certainty for the purpose of removal of administrative sanctions cannot be solely on the basis of discretion may be implemented differently although depending on the situation and conditions. this will lead to a different interpretation by the taxpayer and for fiscus regenerate. the different types of legislation to allow same material shows a lack of compatibility between types, hierarchy and content material. settings on the expiration, administrative sanctions, due diligence measures, is set in the act for the abolition of administrative sanctions in 2008 while on the elimination of administrative sanctions in 2015, is set in the regulation of the minister of finance. legislation with the regulation of the minister of finance has a different legal force due to the superior legislation (hierarchy) than the ministry of finance decree (according to the theory put forward by hans kelsen). 43 as mentioned that the removal of administrative sanctions are soft tax amnesty, 44 where the tax is the relationship between the tax authorities to the 42 explanation of art 5 subsection (c) law no. 12 of 2011 concerning to laws and regulation establishment 43 maria farida i.m, op.cit.,p. 25. 44 gunawan agung waskito, op. cit., p. 91. 101 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 taxpayer 45 then the substance of the policy settings on the elimination of administrative sanctions needed to accommodate between the two sides. two-times implementation of the elimination of administrative sanctions greatly influenced by financial circumstances were grappling at the time both in 2008 and 2015. this is one of the factors the government so that the implementation of the policy. however, the government must be careful when solely aimed at achieving compliance with state revenue. 46 as mentioned that it is very important to know also the viewpoint of the taxpayer, therefore we need a special effort to this information. research and study academically accountable was required to endorse legal products that can be implemented so that it meets the sociological aspect. 47 so it required an academic text and certainly setting the level of legislation because in addition to the circumstances of the economy, the factors that influence in this policy is the belief of taxpayers policy in the future and the facilities they can get. 48 conclusion differences of elimination of tax administrative sanctions in 2008 and 2015 lies in: the background, the legal basis, the content/materials, and the period of validity. it’s just that underlie these differences are on the background to the birth of the policy. elimination of administrative sanction in 2008, aims to achieve the tax revenue target also aims to strengthen the basis of taxation data by providing incentives in the form of no examination action of taxpayers who utilize this facility voluntarily, where the removal of administrative sanctions such as penalty interest on the type of income tax , elimination of administrative sanction in 2015 was motivated by the aim to achieve the tax revenue target and a specific objective, namely as a continuation next year, the year of law enforcement so enmeshed taxpayers who do not fulfill their responsibilities not merely as a data-based , but for subsequent follow. taxpayers who use the facilities of the removal of sanctions is still potential to do due diligence measures on spt/accurate reports when there is a suspicion (as a form of law enforcement). elimination of tax administrative sanctions does not reflects the overall principle of formation of the legislation was good as stipulated in act no. 12 of 2011, particularly the principle of clarity of formulation of the problem, the principle can be implemented, the principle of compatibility between types, hierarchy and content material. in the future sanctions removal setting tax administration must accommodate these principles so as 45 sumyar, op. cit. 46 ralph c. b, harald o., hannes w., op. cit.,p. 2. 47 art. 1 (11) act no. 12 of 2011 concerning laws and regulations establishment 48 op. cit., p. 17. 102 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang putri anggia jils i (1) november 2016, 87-104 http://journal.unnes.ac.id/sju/index.php/jils to ensure legal certainty and justice. in addition to design appropriate measures, preparedness system should also be considered. bibliography attamimmi, a. hamid s. 1990, “peranan keputusan presiden republik indonesia dalam penyelenggaraan pemerintahan negara: suatu studi analisis mengenai keputusan presiden yang berfungsi pengaturan dalam kurun waktu pelita i – pelita vi”, dissertation, graduate school, universitas indonesia,jakarta. berita satu, “jokowi canangkan tahun pembinaan wajib pajak 2015”, available at http://www.beritasatu.com/ekonomi/269612-jokowi-canangkantahun-pembinaan-wajib-pajak 2015.html,accessed 10 september 2015. directorate of tax and finance, “presiden jokowi canangkan tahun pembinaan wajib pajak”, available at http://www.pajak.go.id/content/flash-foto/presiden-jokowi-canangkan-tahunpembinaan-wajib-pajak, accessed on 10 september 2015. directorate general of taxation. 2009.institutional report of 2008. jakarta: department of finance indonesia. directorate general of taxation. 2011.institutional report of 2010. jakarta: department of finance indonesia. halim, hamzah, kemal redindo s.p. 2013. cara praktis menyusun dan merancang peraturan daerah. jakarta: kencana m.d, mahfud. 2014. politik hukum di indonesia. jakarta: rajawali press. masitah, siti. 2013. “urgensi naskah akademik dalam pembentukan peraturan daerah”, legislasi indonesia vol. 10 no. 02 – juni 2013: 109122. mertokusumo,sudikno. 1999. mengenal hukum suatu pengantar. yogyakarta: liberty. mardiasmo (as representative of financial minister), national seminar of optimizing tax revenue: strategy and challenge, feb ugm yogyakarta, 7 november 2015. ministry of finance indonesia, pemerintah canangkan tahun pembinaan wajib pajak 2015, available at http://www.beritasatu.com/ekonomi/269612-jokowi-canangkan-tahun-pembinaan-wajib-pajak%202015.html http://www.beritasatu.com/ekonomi/269612-jokowi-canangkan-tahun-pembinaan-wajib-pajak%202015.html http://www.pajak.go.id/content/flash-foto/presiden-jokowi-canangkan-tahun-pembinaan-wajib-pajak http://www.pajak.go.id/content/flash-foto/presiden-jokowi-canangkan-tahun-pembinaan-wajib-pajak 103 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 http://kemenkeu.go.id/berita/pemerintah-canangkan-tahunpembinaan-wajib-pajak-2015, accessed on 19 october 2015 pansus document meeting, taxation of bill of act (ruu perpajakan), 21 november 2005. pansus document meeting, taxation of bill of act (ruu perpajakan), 25 november 2005. pansus document meeting, taxation of bill of act (ruu perpajakan), 27 may 2007. soeprapto, maria farida indrati. 1993. ilmu perundang-undangan dasar-dasar dan pembentukannya. yogyakarta: kanisius. the constitution of republic indonesia, 1945. http://kemenkeu.go.id/berita/pemerintah-canangkan-tahun-pembinaan-wajib-pajak-2015 http://kemenkeu.go.id/berita/pemerintah-canangkan-tahun-pembinaan-wajib-pajak-2015 104 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang putri anggia jils i (1) november 2016, 87-104 http://journal.unnes.ac.id/sju/index.php/jils 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 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 35 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. 35-46 issn 2548-1584 e-issn 2548-1592 islamic law codification: the friction on authority of islamic law establishment windi afdal 1 windi afdal islamic law practitioner, legal consultant on law firm, safe law firm, yogyakarta asri medical center 2nd floor, jl. hos cokroaminoto no. 17, yogyakarta 55253  windiafdal@gmail.com article info abstract submitted on june 2016 approved on september 2016 published on november 2016 this paper is intended as a historical research study on renewal business through technical codification of islamic law (taqnin) as well as theoretical implications of the legislation (tashri’) of islamic law through the political authorities called parliament. the authors conclude that taqnin and tashri’ as an instrument of reform in islamic law is not something new from if analyzed from a historical perspective. this has been initiated in the past at least by daulah abbasiya in the second century hijriyah or eighth ad, but failed because of a conflict between the political authority (umara) and religion (ulama) in fighting authority of the establishment of islamic law. this issue over and over again when codification movement and legislation of islamic law in the modern era has theoretically implicated and it is a rare phenomenon that should be more deeply considering the renewal of islamic law which is ongoing it contains at least one millennium old historical value. keywords: codification, islamic law, authority, ulama, umara 1 s.h., universitas gadjah mada (2007-2012), m.h., universitas gadjah mada, magister hukum bisnis (2013-2015), 2016. special thanks prof. abdul ghofur anshori, s.h., m.h., for valuable comments, and to mr ridwan arifin, the editorial board of journal of indonesian legal studies, postgraduate program faculty of law, universitas negeri semarang for any kind of helps. mailto:windiafdal@gmail.com 36 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils windi afdal jils i (1) november 2016, 35-46 introduction law reform is one of the main agenda on legal developing especially in indonesia. ideas of manifestation of that reform have prompted the need for renewal of thought development that questioning how islamic law response to the challenges of changing times, especially the islamic world itself. but this effort is not been easy as said, considering how difficult of the challenge at the practical and conceptual level. in the modern era a number of efforts to reform islamic law has been done to remodel and reconstruct the classical jurisprudence that has been established both at the level of substantive material—such as legal methodology (usul al-fiqh) as well as the formal procedural aspects. fazlur rahman is perhaps one of the forefront of the effort to reform the methodology of islamic law with the theory of motion of the multiple (double movement). the theory proposed jurisprudence and its hermeneutic, according to rahman islamic law will only be renewed if the islamic jurist back in the aspect of normative and historical. 2 in any process of itihad, mujtahid should make every effort to understand the arguments of al-quran and hadith relevant problems faced, in understanding the normative aspects of the quran and the hadith, he should be back on the circumstances that accompany on the way down and release of al-quran and the hadith. and at the same time the circumstances were then compared to contemporary circumstances confronting the mujtahid. thus the results of ijtihad/renewal of the law will be in accordance with the situation and needs of today's society, but at the same time doing justice to the law in the past. besides the methodological problems, these reform efforts also touched on the problem of “formal-procedural” through the idea of codification and the promulgation of islamic law (sharia) into positive law. starting with the release of book of the civil code of the ottoman empire (majallat al-ahkam al-adliyyah) in 1869, the process of codification and promulgation has become a phenomenon in the effort to reform the law in the islamic world. 3 indonesia is not exempt from the phenomenon, after the issuance of islamic law compilation through presidential instruction no. 1991, the codification effort and the promulgation of islamic law is continually happen until today. 4 during this attention, the codification and formalization of sharia law to become more positive on the political aspects of the legal suppression 2 akh minhaji, 2013, sejarah sosial dalam studi islam, 2013, yogyakarta: suka press, pp.1618. 3 see, n.j coulson, 1964, a history of islamic law, edinburg, pp.124-150. 4 other important codifications is high court decree (perma) no. 2 of 2008 concerning to compilation of sharia economic law and other laws and regulations such as law no. 1 of 1974, law no. 21 of 2008 concerning to islamic banking, law no. 23 of 2011 jo. law no. 38 of 1999 concerning to zakat management, and law no. 41 of 2004 concerning waqf. 37 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 especially in the context of political legislation. whereas in the conceptual thing, there was a problem that no less complicated whereby when an effort to reform islamic law is pursued through a process of codification (taqnin) and the enactment of sharia as the law through the process of legislation and regulation is actually a shift of authority from the law-making from fiqh-ulama (religious authority) the qanun-state authority (political authority). from this point of debate at the level of political issues and legislation is just a derivative of problem between the relationship between the authority of the ulama (fuqoha) and state authorities in establishing islamic law. this paper is intended to review the implications of the relationship between the ulama and the state after the codification and promulgation technique chosen as a way to renew islamic law. in the discussion later many more authors used some approaches in the analysis of social history. 5 from these efforts will we be able to reassemble the record the history of the establishment of islamic law in the context of global and local to then be withdrawn benefits not only for academic interest but also practically can help legal experts in the business in the future formulation and reform in islamic law. law and sharia: philosophical context before discussing further the issue of islamic law reform efforts through the legislative process, there are some questions which quite a “tickle” very basic yet to be answered. the first question is what is meant by islamic law? can “islamic law” is amended; and/or whether “islamic law” that has been changed can still be described as “islamic law”? this problem can only be addressed if we rethink what we mean by the islamic law. in the approach philosophical, the term of islamic law is referred to the terms of islamic recht (ducth), islamische recht (german), ley islamica (spain), droit musulman (french), islamic law (english), islam hukuku (tukery), and many other names in various different languages. 6 but, this terms became a bit difficult when try to be referred into arabic terminology. most people use the term shari’ah while the rest use the term fiqh to indicate this kind of law. some experts such as abdul wahhab khallaf, muhammad yusuf musa, muhammad mustafa salabi, or muhammad sallam madzkur were not always the same in defining sharia and fiqh in which sometimes one another in turn can be broadly defined and narrow. for the layman it 5 with high respect, this paper inspired by minhaji’s perspective from his book concerning to the method of social historical studies and the thought that emphasized how important historical analysis to understand many problems in islamic law. 6 those terms more proper that previous terms used, that conceptually wrong such as muhammadan law or mohammedaansche recht 38 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils windi afdal jils i (1) november 2016, 35-46 certainly confused and give considerable implications in the discussion of the practice of islamic law as a whole. comparative legal studies experts indicated the problem above as a “terminological trap” that one of the causes occurs due to limited vocabulary as the equivalent of a foreign term to use translators into their native language. the only way to avoid such trap is to try to understand the definition of the absorption elements in accordance with the original language. minhaji as quoted of al-jurjani’s opinion in his al-ta'rifat provide a definition language (lughatan) shari’a as al-thariqah al-mustaqimah (the straight path), whereas al-fiqh is fahm (understanding) or al-‘ilm (knowledge). in terms of definitions of the terminology (ishtilahan), muhammad mustafa salabi defined sharia as the “rules of god’s servants in order to become good people who do good deeds associated with the act, aqidah and morals”. as for the definition of fiqh is recognized as “sciences that related to the rules god set forth by the proposition in detail.” definition above distinguished shari’ah and fiqh from the existence perspective, that sharia is eternal dimension which means it will never change throughout the ages, while fiqh as a science or legal methods currently on the dimensions of temporality. meanwhile, in terms of shape ashidiqie put sharia law in abstracto while jurisprudence as the law in concreto. thus the limitations of indonesian terms of islamic law at one time can mean sharia, but in another context could also mean fiqh. to avoid any misunderstanding on defining both terminologies, the author emphasized that the scope of the definition of law reform in this paper is the terminology of islamic law in the context of fiqh. islamic law: pre-codification in the analysis of historical, prophetic treatise that brought the prophet muhammad in the early phase of the development of da’wah is not intended to establish a separate legal system; it is rather the teaching load of the system of ethics and values guiding people about what to do and what should be avoided in order to account for anything he did on the day of reckoning later. 7 it can be analyzed from the versions (al-ayah) in quran which contain the obligation (al-ayah al hukumah) is more less that other problems. in establishing the law, basically muhammad is quite accommodating in the element of customary law (urf) of the pre-islamic arab nation which is not contrary to the sharia. at this time the need for the establishment of a separate legal system is not seen as an urgent necessity considering any legal issues facing the ummah when it can be directly asked of the prophet muhammad. 7 joseph schacht, “problem of modern islamic legislation”, studi islamica, no.12, 1960, p.106. 39 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 islamic law as a legal system of its own (sui generis) begins compiled at the beginning of century of 7 th m and reach maturity in the 9 th century ad, this period is often referred to as the establishment of islamic law (formative period). 8 in this period of islamic law it is not seen as a product of positive law enacted by the legislature as the mainland european legal systems, but not also a model of a legal system that is formed and attached to the doctrine of precedent (case law) as the common law system. based on the constituent authority of islamic law is more appropriate to be viewed as legal scholars (jurist law) for the material and legal resources to the material created and compiled by the fuqoha or mufti during the formative period. one thing is for sure that they are not member to any professional group or formal state functions as a legislative institution we know today. nowadays, islamic law manifested as a fiqh that produced from a thinking and ijtihad of ulama based on the sources of revelation and ra’yu (reason), and fiqh itself consists of written sources in the form of books of fiqh (rechtboek), the methodology of law (ushul fiqh) and determination of the authorities and law enforcement authorities. in its legal methodology, islamic law guided by revelation contained in the quran and hadith as a source of primary law, while approaches ra'yulike qiyas (deductive analogy) and ijma’ (consensus of the ulama of every mazhab) is a complement with still refer to a main legal sources (al-quran and hadith). the earlier ulama on formulating the written sources have made some effort to prepare the various issues and the legal stipulation in the book serves as a practical reference book of law for the qadi. hanafi madzhab of law is perhaps the most likely group to compile the book of the law. in this effort imam abu hanifa formed a consulting council in the city of kufa. led by imam hanifa himself, this involves a team of 40 experts who mastered fiqh, tafsir, hadith, grammar, and other branches of science. in this institution, individual opinions discussed and combined with deliberation. it also implemented a set of rules that ensure law and jurisprudence to be coherent, and clear up eventually formed a fairly comprehensive book of the law at that time, but unfortunately the manuscript never reached us. in the meantime we also know the maliki madzhab of law book “al-muwatta” or law book from minhaj al-thalibin from syafi’imadzhab of composition imam nawawi. 9 this method does not give way to political authorities (umara’) to control the formulation process of law-making despite various efforts repeatedly made to influence it.this is why it is not uncommon tension between ulama and umara’ at that time. in general, leading ulama keep a distance and set strict limits in conjunction with the authorities. this effort is 8 aharon layish, “the transformation of the sharia”, die welt des islam, new series, vol.44, 2004, p. 86. 9 ahmad ibrahim, 1993, perkembangan kodifikas hukum islam di malaysia, bandung, mizan, p. 91. 40 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils windi afdal jils i (1) november 2016, 35-46 intended solely to prevent derogated an independence of ulama against the political authorities in establishing the law. in the limited areas of political authority through siyasa shar’iyya function is only authorized to assign administrative decisions or qanuns in matters of taxation, land and jinayah problems in setting ta’zir. in addition tauliyah on the basis of political authority also has jurisdiction in matters of appointment, competence cases and practical problems in the administration of justice. nevertheless overall the concept is still built on a foundation of theocracy are subject to and limited by syari’ah. 10 the interesting thing to note is some attempt was made political authorities to extend their authority in law enforcement. ibn al-muqaffaa state secretary minister at the caliph al-mansur (140h/757m) had suggested the need for codification of law through an administrative decision of the caliphate that will apply throughout the territory daulah abbasiyah in those days to create uniformity of law and its enforcement in the court.this idea has a futuristic passion to overcome the gap between madzhab of law given at the time of islamic law is still in its formative phase (formative period). 11 although the concept was intended only to authorize technical procedural for the authorities in the enforcement of law and obviously did not go to the substance of the formulation law, but this idea also was widely rejected by ulama with various considerations. if it is accepted, the islamic law will develop entirely different with what known today. presumably, as stressed by schacht that the thinkers of classical islamic law were maintained strict limits and refused to close on power. it is most feared by ulama at that time surely is a concern authorities and their independence in formulating the law. another quite successful effort is perhaps a decision on the case expired. previously, according to fiqh the authority to hear qadi only restricted by region and types of cases. restrictions for its expiring (daluarsa)case after sulaiman i introduced in 1550 instructed the qadi not to hear cases that the time has over from 15 (fifteen) years since the events that are legally take place, that’s when the uniformity of the time limit expired widely accepted. interesting turns the command does not work and binding for the qadi. 12 the decree will take effectively binding in court after the request ordered shaykh al-islam abul-suud to provide a fatwa which essentially stated that on the basis tauliyah, as the caliph who had raised the qadi, and then it becomes a necessity for the qadi in order to implement islamic law to obey the order/decision of the caliph. 13 10 joseph schacht, 1964, an introduction to islamic law, oxford, p. 54. 11 coulson, 1964, a history of islamic law, edinburg, p. 52. 12 joseph shacht, op.cit.,p.102. 13 daniele s.lev, 1986, peradilan agama islam di indonesia (tran.zaini ahmad noeh), jakarta, intermasa, p.1. 41 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 even though not all positive legal products produced through the legislative process, the classical period up to the end of the middle ages, the fiqh established by the ulama manage almost all aspects of life of ummah. as a practical sciences is almost no area that is not entered by fiqh. as a science, fiqh is synonymous with fuqoha and fuqoha synonymous with alimulama. considering how ulama has an important role in the establishment and administration of the islamic legal system, should we be surprised if it has been argued that the establishment of the authority of islamic law is an area of the ulama or a religious authority. codification of islamic law codification of islamic law is a phenomenon arising from the impact on many changes in socio-cultural fields, both of which occurred in the internal and global islamic ummah. in addition contiguity of islamic civilization in the middle east with the progress and the idea of western thought in the mid-19 th century agenda helped stimulate reform in islamic law. 14 the idea of the west most influential here include for example the concept of the nation state, the rule of law and legal positivism. third idea of thinking has shaken the joints basis of the medieval islamic legal heritage. the concept of the nation state led to the idea that the legal distinction on the basis of religion is no longer tenable and the only distinction is the basic law of citizenship. therefore, the law must be made in the national scope which applies to all citizens without regard to ethnicity, religion, race and so on. this makes the theory credo, receptio in complexu, as well as other theories which basing the enacting law to someone in accordance to his or her religion was lost basic ground mind. the concept of rule of law makes the separation of powers, including the legislature as an institution adopted a law maker is seen as a necessity. model caliphate and daulah assessed govern their absolute (despotic) when it began to lose legitimacy and support. while in the school of philosophy of law, the validity, legality and legal binding power is no longer determined by the religious authorities (theo-centric), but the law will only be valid and binding all have enacted into state law (statutory law) as the doctrine of legal positivism. to realize the agenda of legal reform, the islamic thinker faces two options, first whether it should remain on track classic fiqh with all its rigors, or second, muslims have to turn westward to adopt the model of the formation of the law that is more advanced, but contrary to the concept of fiqh during which they practice, that in the development of most of the islamic countries prefer the latter as an instrument to renew islamic law. 14 about the effect of this friction, see lothrop stoddard onthe new world of islam. 42 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils windi afdal jils i (1) november 2016, 35-46 in the law-making process and then adopted the institutional authority of the legislative power to run the codification and promulgation techniques (taqnin). parliament then formed to merge shari’a law into the country through the formalization of sharia law into the positive (tashri). book of the law then enacted it to the public, accompanied by the authority to impose sanctions for any infraction. no doubt the urge to use the technique of tashri’, these include the magnitude of the desire to make a change in law to address community needs while remaining within the framework of sharia as well as modernization measures as the influence of western civilization. law codification in islamic world was firstly initiated by the government daulah era ottoman turkey in the mid-19 th century ad. law reform at the time started with some codifications of certain areas of fiqh from the west to be applied in the implementation of sharia through enactment these rules into laws and regulations. gradually the practice of the law codification entered and changed some certain provisions that were previously complied with provision of fiqh. one of the most important efforts in the codification of islamic law is the imposition majallat al-adliyah (1869-1876) accepted islam as the book of civil law. 15 in addition to adopted western model of codification, the formulation of legal macelleused the approaches from madzhab of hanafi e.g eclectic techniques (takhayyur) with its consideration of a more accommodating on providing a legal need to the people and state. since the beginning of the 20 th century codification efforts have been expanded not only in certain issue, but also into the midwife-area of family law and legacy and also problems in the area of waqf. the enactment of family law of ottoman turkey in 1917 has pushed a similar codification in many countries in the middle east and northern africa. the main idea of law reform was driven by the influence of shift in the pattern of familial arab nation into a nuclear family and the strengthening of women’s rights in the area of family law. in the context of indonesia’s efforts to formalize sharia perhaps only started in half of the mid-20 th century through the renewal of marriage laws, regulations of waqf practices, regulation of zakat management, and the establishment of islamic banking regulation. the most important legal codification efforts including through the establishment of the presidential instruction no.1 of 1991 on the compilation of islamic law and high court degree (perma, peraturan mahkamah agung) no.2 of 2008 on law compilation of islamic economics. in general practice the tashri using juridical foothold in the government’s authority to establish laws through siyasas har’iyaa. while the technique istibant or formulation of the law much used many accommodative approaches on facing the changes such as the approach eclectic (takhayyur and talfiq), approach maslaha (public interest) as well as the efforts 15 in turkey language is called macelle 43 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 reinterpretation of the al-quran and as-sunna as introduced fazlur rahman (called also neo-ijtihad). analyzing this phenomenon, it can be divided into two views whether codification of islamic law can be seen as a form of renewal and positive developments on sharia development practices or not. this opinion is based on the view that the forms of these changes are manifestation of sharia vitality and its ability to renew its legal construction in internalization the spirit of progress. most others are quite skeptical and see that actual practice is actually out of the codification of sharia principles and lead to a process of secularization of the islamic world. in this view tashri practices are not only seen as a problem in determining the formal procedural law of islam but have further implications to the authority of the clergy in the determination of the law, including the legal methods used. mechanical eclectic (takhayyur and talfiq) as well as the dominant approach in the determination maslaha law is one of the main reasons for the refusal. rate as the practice of secularization can be seen for example in the implementation of the tunisian code of personal status of 1958 which regulates the legal issues of marriage and legacy in tunisia. 16 in article 18 of the law stipulates the prohibition of polygamy in absolute terms by the sanctions in prison and fines for violators. this rule has come under high contradictory in the world of islam at that time even until now because it is contrary to sharia. but in terms of the tunisian government’s own use of islamic law proposition foothold in setting the rules by basing that polygamy require the husband’s obligation to be fair, while perfect justice that cannot be realized by humans. because the legislator believes that, in principle, basically quran forbids polygamy. 17 meanwhile techniques such eclectic and talfiq takhayyur criticized by classical scholars because it seemed opportunistic in law establishment. takhayyur practice can be seen in the rules of the muslim personal law application act 1937 which regulates civil matters for muslim in india. in this act declared marital problems and divorce for the muslim community in india is set according to the madzhab hanafi of fiqh because most of muslim in india adopted madzhab of hanafi. considering that madzhab stated that divorce which initiated by women are very difficult even almost impossible, then these laws prohibited any kind of divorce initiated by women. as excesses, if a woman wanted to divorce the only way is to opt out of the religion of islam and thus the marriage broke up because fasakh. since then the social impact of this law resulted in many india muslim women who opt out of the religion of islam only for the benefit of the reasons of 16 tahir mahmoud, 1972, family law reform in the muslim world, the indian law insitute, new delhi, pp.35-38 17 actually there is hadith stated that the fair is not include in the rights of law, but tunisia government was not accepted this hadith, and this problem also can be compared with law no. 1 of 1974 concerning to the marriage. 44 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils windi afdal jils i (1) november 2016, 35-46 divorce. seeing these bad symptoms, ashraf ali tsanawi in 1939 then initiated the birth of the dissolution of marriage actgoverning divorce with techniques takhayyur then move from the madzhab of hanafiinto maliki. 18 in general takhayyur technique is rejected by ulamamadzhab except madzhabofhanafi. it is based on that opinion contained that in one madzhab has its own distinct ground that attempts to “pick” one opinion with other opinions from different madzhab is in the other said damaging the overall foundation of the legal construction of the madzhab. the same thing happened in maslaha approach (public interest) which by some fuqoha called the foundation “maqasidshari'a”that had not previously been widely accepted as the basis for determination of the law then turned and expanded its use by legislators and shifting approaches to qiyas (analogy deductive) previously more widely accepted. in practice maslaha approach has now become a pure concept basing on expediency in setting positive law. on this side of the will of the people seemed to have been the source of its own law. in the indonesian context separate regulation regarding pregnant mate in chapter viii section 53 and 54 compilation of islamic law is perhaps an illustration of the practical use of this maslaha approach. in a more extreme view,hallaq see more maslaha use as a tool of secularization of islamic law rather than as a means of reform in islamic law. 19 the response of ulama on codification and promulgation of islamic law a different attitude that cannot be met among the ulama is a problem of reception of codification practices against sharia muslim country. on the one hand, the ulama conservative, as long as they have the freedom to express their views there is a tendency to reject and fight for the implementation tashri which is seen as a form of secularization of islamic law. while on the other hand the ulama compromise supports the tashri techniques’ in an effort to reform islamic law with varying degrees of acceptance and even up to offer specific proposals for the legislative process. there are several reasons why ulama have a tendency to make cooperation between the state and the ulama. among the problems of relationship between the regime authority and ulama both in terms of its formation and the degrading position role of social, economic and political. in view of the ulama moderate, the option to be outside and against the authority of the ruler is vanity remember it actually makes them face vis a vis on the 18 see hm. atho mudzhar, “pengaruh faktor sosial budaya terhadap pemikiran hukumhukum islam”, mimbar hukum, no.4 of 1991, jakarta, al-hikmah and badilag, p.25; see also ira m.lapidus, 1989, a history of islamic societies, uk, cambridge university press, pp. 698-699. 19 hallaq, the transformation of islamic law (7); also onlegal theories, 214. 45 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 control and supervision of the state, another option to separate religion and state explicitly as in turkey could not be a better alternative. additionally reform law reforms are not inherently as well as a form of anti-religious ideology. even the ulama it could get much greater benefit when collaborating with the state as it would make them better understand the demands of the state on one hand at a time coloring in accordance with the legislation process and scientific belief that they control. for the case in saudi arabia, for example, the collaboration of ulamaand umara would have a theoretical foundation by basing on the opinion of ibn taymiyyah (1328) which teaches that the imposition of islamic law it relies upon the authority umara', while the legitimacy and recognition of the existing law on the cleric. conclusion post law codified and legalized in the muslim world since that time there is a change of roles between the ulama and the state in applying the law. technically, procedural change is the transition of religious authority into a political authority. the change makes the relationship ulama and the state is no longer the same as the previous period and the balance between them is decisive for the achievement of maqasid syariah. in this connection, the provisions of the enactment of sharia determined and depend on the legislative process by the political authorities, while a legitimate basis for compliance with these provisions is determined how much the authority of ulama and sharia law be accommodated in the country. it is no coincidence if in various problems above was we found a connecting line between the past and the present. the more deeply and objectively we review the originality of the historical aspects of islamic law, the more benefits we can also pull in resolving the problems that we are facing today. bibliography minhaji, akh. 2013.sejarah sosial dalam studi islam. yogyakarta: yogyakarta: uin suka press coulson, n.j a. 1964.history of islamic law. edinburg. schacht, joseph. “problem of modern islamic legislation”, studi islamica no.12, 1960, pp. 87-120. layish, aharon. “the transformation of the sharia”, die welt des islam, new series, vol.44, 2004, pp. 71-98. 46 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils windi afdal jils i (1) november 2016, 35-46 ibrahim, ahmad. 1993. perkembangan kodifikasi hukum islam di malaysia. bandung: mizan. schacht, joseph. 1964. an introduction to islamic law. uk: oxford. lev, daniele s. 1986. peradilan agama islam di indonesia (terj. zaini ahmad noeh), jakarta: intermasa. mahmoud, tahir. 1972. family law reform in the muslim world. new delhi: the indian law institute. mudzhar, hm. atho.“pengaruh faktor sosial budaya terhadap pemikiran hukum hukum islam”, mimbar hukum no.4 of 1991, jakarta:alhikmah and badilag. lapidus, ira m. 1989. a history of islamic societies. uk: cambridge university press. 15 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. 15-24 issn 2548-1584 e-issn 2548-1592 the protection to victims of violence based on gender as a fulfillment of the constitutional rights in the perspective of human rights in boyolali’s district, indonesia ristina yudhanti 1 , saru arifin 2 , fauziah rismadini 3 ristina yudhanti lecturer, researcher, faculty of law, universitas negeri semarang, indonesia  ristina_74@yahoo.com article info abstract submitted on june 2016 approved on december 2016 published on may 2017 cases of gender-based violence increase from year to year and this raises concerns. the phenomenon that puts boyolali as the district with the highest number of gender-based violence to former residency surakarta need for follow up. this study aims to get information form of protection and the efforts that have been undertaken by the government of boyolali district to meet the constitutional rights for victims of gender-based violence in boyolali; fulfillment of constitutional rights for victims of violence against women by the government of boyolali regency, among others; complaint service spread in 19 districts in boyolali district. social rehabilitation services are given by officers and social rehabilitation. spiritual guidance services provided by spiritual guidance counselors are trained for women and child victims of violence in the integrated service unit. law enforcement from the level of investigation to court decisions on cases of violence against women and children has been carried out according to the procedure. legal aid service to women and children of victims of violence. repatriation of women and children victims of violence. according to standard that has been set in spm by 75%. social re-integration services for women and child victims of violence, according to standards set out in the spm at 100% keywords: gender violence; protection; service; boyolali district introduction 1 phd candidate from universitas sebelas maret (uns), surakarta, indonesia. i would like express my thankfulness to universitas negeri semarang, especially for research and community engagement office, and also to all parties involved on this research especially for state official of boyolali district. 2 correspondence at saruaifin@mail.unnes.ac.id 3 faculty of law, universitas negeri semarang mailto:ristina_74@yahoo.com mailto:saruaifin@mail.unnes.ac.id 16 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang ristina yudhanti, [et.al] jils 2 (1) may 2017, 15-24 http://journal.unnes.ac.id/sju/index.php/jils the struggle for human rights is essentially part of the demands of history and culture, including indonesia. therefore, fighting for human rights is the same as fighting for the nation's culture or cultivating the nation, among others, humanity and humanity all over the world and one. given the difference and culture, when there is a culture that is contrary to the spirit of human rights, it is necessary to incrementally and continuously the dialogue, approach, and completion. in the 1945 constitution both before or after the amendment of human rights occupy an important position, it has even been presented in some organic rules or in positive law. in the 1945 constitution there are 11 articles on human rights from articles 28, 28a to article 28j. in 28j “obliged to respect the rights of others and subject to the restrictions set forth in the law”. then to implement the law number 39 of 1999 concerning to human rights and in indonesia there is also a human rights commission (komnas ham) which has a position as an independent institution that ranks as the other state institution that performs research, research, counselin, monitoring, and mediation of human rights. this country has prepared all devices related to human rights enforcement in indonesia. the hope is to honor the human rights of all citizens without exception. so violations of human rights in indonesia can be minimized in this country. but the fact that it is in the society is so ironic that there are many cases of violence that occur in society and we can not turn a blind eye to some of the violent, especially gender-based violence that occurs in our country today. gender-based violence is a very common human rights violation, a public health crisis, and challenges to equality, development, peace and peace. the term “violence against women” and “gender-based violence” is used to describe a series of persecutions committed to women rooted in gender inequalities and women's subordination within society against men. violence against women included in the war was used as a tool for spreading fear, terrorizing and embarrassing women, their families and communities. in 1993, the un declaration on the elimination of violence against women defines violence against women as “gender-based violence that results in or is likely to result in physical, sexual, or psychological injury or suffering against women, including the threat of doing such acts, coercion or discrimination on a random basis, whether in public or private.” this definition covers violence that occurs in the family, in the general public, and the violence done or left by the state. gender-based forms of violence include but are not limited to: domestic violence, sexual abuse, rape, sexual abuse, trafficking, forced prostitution, and harmful acts against women. these forms of violence can lead to problems in reproductive health and physical, mental, sexual, and other health problems. more than that, the plurality of women's identity and 17 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 their affiliation with various other identity factors such as class, race, ethnicity, religion, age, sexuality and citizenship status can be something that increases their vulnerability to violence. gender-based violence has been increasing year by year from the data that researchers get. there is a significant increase in gender-based violence cases in boyolali. based on the data obtained there is an increase of gender-based violence cases in boyolali regency, in 2012 there are 40 cases, in 2013 there are 60 cases, in 2014 there are 62 cases. gender-based violence cases rise from year to year and this raises concerns. the phenomenon that places boyolali regency as the regency with the highest number of gender-based violence as surakarta residency is very concerned. approach method approach method used by writer in this research is juridical empirical method. according to ali (2009: 30) empirical juridical method consists of: (1) research on legal identification that is intended to know the unwritten law which is based on applicable law in society, and (2) research on the effectiveness of the law is a study that discusses how the law that operates in society. as in this study using a more focused juridical empirical research on the effectiveness of the implementation of the law is to discuss how the legislation in force. research specification according to ali 4 a descriptive analytical research is research that revealed the legislation relating to the legal theories that became the object of research, and also in the implementation of law in the society with regard to the object of research. therefore, specification of research used in this research is descriptive, because the legal facts of data obtained from this study seeks to provide an explanation to give an idea or express a variety of factors that are considered closely related to the protection of victims of gender-based violence. descriptive because the research is intended to illustrate in more detail, systematically and comprehensively on all matters relating to the protection of victims of gender-based violence. the term implies analytical grouping, connect, compare and giving meaning to aspects of the legislation relating to the implementation of the protection of victims of gender-based violence in boyolali 4 ali, zainuddin. 2009. metode penelitian hukum. jakarta: sinar grafika, p. 105 18 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang ristina yudhanti, [et.al] jils 2 (1) may 2017, 15-24 http://journal.unnes.ac.id/sju/index.php/jils protection for violence of gender violence in boyolali regency, indonesia cases of violence against women spread across 35 districts / cities in central java. based on the monitoring and handling of cases of lrckjham in 2015, that semarang city with the highest cases of violence against women with 125 cases. followed by wonosobo district with 62 cases, surakarta with 33 cases, kendal district with 20 cases, semarang district with 11 cases, pekalongan city, pekalongan district, batang district, brebes regency with 10 cases, klaten regency, demak district with 9 cases . there are still many cases of unreported violence against women or victims who dare not report the case. because it is still considered taboo or even the victim is still blamed by the community if the victims of violence. it is this situation that suppresses the number of reports of violence against women. as a result, many cases have not been addressed and the lack of protection and even post-violence recovery of women has occurred. cases of violence against women were classified into 8 types of cases. among them are: rape, sexual slavery, trafficking, sexual harassment, women migrant workers, domestic violence, kdp, and prostitution. of the 8 types of cases of violence against women the highest was the case of domestic violence with 37.86% or 145 cases, followed by kdp cases with 21.41% or 82 cases, 16.45% or 63 cases of rape, prostitution with 11.23% or 43 cases, female migrant workers with 5.22% or 20 cases, sexual slavery with 3.65% or 14 cases, sexual harassment with 2.61% or 10 cases and trafficking with 1.57% or 6 cases. cases of violence against women increased the type of sexual slavery. where since 2014 found a new type of case that is sexual slavery. the number of victims of cases of violence against women in central java during november-june 2015 recorded 66.67% or 723 age unknown victims, adults with the number 22.44% or 243, and 10.71% or 116 while the age of the elderly victims 0.09% or 1 victim. 19 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 law no. 13 of 2006 jo. law. no. 31 of 2014 concerning to the protection of witnesses and victims, article 5 regulates the rights of witnesses and/or victims in general, including witnesses, reporters, and experts are also entitled to the right of witnesses and/or victims. this law gives special rights to special crime victims as well. article 6 provides for the special protection afforded to this particular crime victim, one of whom is a victim of a criminal act of sexual violence, in addition to general protection as set forth in article 5, the victims of sexual assault also enjoy special protection as is set forth in article 6 of this act which is entitled to receive medical assistance and rehabilitation, psychosocial, and psychological assistance. special protection is necessary for victims of sexual violence because in addition to physically suffering victims of sexual violence also suffer psychically so that requires special attention and protection. law no. 13 of 2006 jo. law. no. 31 of 2014 concerning to the protection of witnesses and victims in addition to giving the rights to witness and/or victim either general or special also gives sanction to every person who will make witness and/or victim lose or do not get their rights. this provides a sense of comfort to the victim and/or witness to guarantee the rights granted by law. given that violence against women can not be eliminated from the root of the problem, that is discrimination, so members of alliance / forum / network always make efforts to increase gender awareness and women's rights, both at government apparatus level and community in their respective environment. in addition to efforts to popularize legal products that protect victims of violence, such as law no. 23 of 2002 concerning to the child protection and law no. 23 of 2004 on the elimination of domestic violence this is done with the awareness that it is important to make changes both structurally (government) and culture, both of which are necessary to eradicate discrimination against women. this awareness-raising effort has always been emphasized that both the state through the local government (village/sub-district, district, district/city) and community (community) have responsibility in preventing and handling cases of violence against women. the state has an obligation: 1. take non-legal or socio-cultural steps in community life in his country; 2. punish or sanction any perpetrator of gender based violence, whether committed by a person, organization or company; and 3. the state may be held accountable, if: public officials engage in acts of gender-based violence, the state fails to enforce or enforce the law in the prevention of a human rights violation committed by a person, the state fails to investigate and punish such offenses (national comission for women, komnas perempuan 2006: 7 ). while the responsibility of the community, especially in the effort of prevention and handling of domestic violence, as mentioned in article 15 law no. 23 of 2004 on elimination of domestic violence: 20 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang ristina yudhanti, [et.al] jils 2 (1) may 2017, 15-24 http://journal.unnes.ac.id/sju/index.php/jils anyone who has heard, seen or acknowledged the occurrence of domestic violence shall make efforts in accordance with the limits of its ability to prevent crimes, provide protection to victims, provide emergency assistance, and assist in the process of applying for safeguards. the efforts that designed by the government of boyolali regency violence of women and children in boyolali district tends to decrease. in 2014 there were 77 cases and in 2015 decreased to 53 cases of violence and in 2016 until the first quarter only 6 cases occurred. head of bp3akb kabupaten boyolali, the decrease of domestic violence cases and child violence in boyolali decreased thanks to the socialization of bp3akb on anticipation of physical, psychological and sexual violence against women and children. through the three ends program that ends the free sex, ending human trafficking and end the economic access gap women. anticipating juvenile delinquency and free sex is done with the socialization of the three ends to students ranging from junior high, high school and universities as well as community targets incorporated in youth. in this way the community, especially students and youth memahmi regulation at the same time expected not to perform the forbidden action. in addition, the decrease in violence in boyolali was also caused by the increasingly critical of the community to report every case that occurred around the environment to the integrated service center for women and children empowerment (tim pusat pelayanan terpadu pemberdayaan perempuan dan anak, tp2p2a) boyolali district. with the report can give deterrent effect to the perpetrator not to do violence as well as give lesson to society that to do acts of violence is unlawful action. based on boyolali regent’s regulation no. 21 of 2015, various services are carried out by the boyolali district government as an effort to emphasize the violence of women and children, as well as efforts to fulfill the constitutional rights for victims of gender violence in boyolali district, such as: 1. women and children victims of violence who receive complaints handling by trained officers within the integrated service unit, the data shows that victims of violence against women and children in 2012 are 70%, in 2013 being 75%. in handling complaints victims of violence against women and children have been handled and followed up according to procedure but not all officers in upt get training. for the year 2015 will be held training development of an integrated training center in 19 districts. 21 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 2. women and children victims of violence who have trained health services at puskesmas are able to manage kip/a and ppt/pkt at the hospital. violence victims of women and children have received health services but there is no coordination/mou in the health treatment for victims so that victims in the divisum process at the hospital or puskesmas are still treated as other general patients. 3. social rehabilitation services provided by trained rehabilitation and social workers for women and children victims of violence within integrated service units not all victims of violence have rehabsos services because there is no/limited infrastructure, trained officers in upt/dinas concerned (dinas sosial, social unit). 4. the spiritual guidance service provided by trained spiritual guidance officers for women and children victims of violence within the integrated service unit is given so far is to provide motivation and spirit for the peace of his soul but have not yet had a special room / shelter to handle the victims. 5. law enforcement from the level of investigation to court decisions on cases of violence against women and children has been implemented according to the procedure, which has been handled in 2013 by 92%. a. this is beyond the interpretation and standard of 20%, for cases of violence against women and children, there is already a special unit of ppa from the polres and the judges of the children in the court and according to the rules already exist law no. 23 of 2002 of protections to the children and the law of domestic violence no. 23 of 2004. 6. legal aid services for women and children who are victims of violence obtaining legal aid services in 2013 can already be handled by 67.46% according to the standard set by 50%, because not all cases of victims of violence against women and children have legal aid services. this is seen from the cases faced, and most victims refuse to be processed to the realm of law. 7. repatriation of women and child victims of violence. in accordance with the standard set in the spm of 75%, but until the year 2014 boyolali region there has been no case of repatriation of women and children victims of violence, and if there are cases like this the government facilitates through technical satkers have prepared the necessary tools. 8. social reintegration services for women and child victims of violence, according to the standard set in the spm of 100%, based on reports that have been received in the year 2013 can already be served by 40%. for the reintegration of social we provide an understanding of the family, the community in the victim environment through the provision of information, motivation. 22 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang ristina yudhanti, [et.al] jils 2 (1) may 2017, 15-24 http://journal.unnes.ac.id/sju/index.php/jils conclusions efforts to build awareness of forming a protection of victims of gender violence, always stressed both countries through local governments (rural/village, district, county/city) and communities (communities) have a responsibility to prevent and deal with cases of violence against women, including: (1) take non-legal or socio-cultural steps in community life in his country; (2) punish or sanction any perpetrator of gender based violence, whether committed by a person, organization or company, and (3) state may be asked for the responsibilities to the people. the fulfillment of constitutional rights for victims of violence against women conducted by the government of boyolali district, including: 1. complaint service spread in 19 districts in boyolali district. 2. women and children victims of violence who receive services 3. social rehabilitation services provided by rehabilitation and social workers. 4. spiritual guidance services provided by trained spiritual guidance officers for women and child victims of violence within an integrated service unit. 5. law enforcement from the level of investigation to court decisions on cases of violence against women and children has been carried out according to the procedure. 6. legal aid services for women and child victims of violence. 7. repatriation of women and child victims of violence. appropriate standard set in the spm of 75%. 8. social reintegration services for women and children victims of violence, according to the standard set in the minimum servicees standard (standar pelayanan minimal, spm) of 100%. suggestions for this case, for people in boyolali district, be aware of the increasingly prevalent gender violence, identify the symptoms that occur in the environment. parents immediately protect their children from promiscuity and reduce unnecessary activities with unclear friends. for forum/community of caring women, should imediately identify the symptoms of deviance in the form of violence against gender among students and students, and for the government, should immediate forms of community service for the recovery and further development of victims of gender violence. 23 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 bibliography ali, zainuddin. 2009. metode penelitian hukum. jakarta: sinar grafika. amiruddin. 2012. pengantar metode penelitian hukum. jakarta: pt raja grafindo persada. hoesin, iskandar. 2003. “perlindungan terhadap kelompok rentan (wanita, anak, minoritas, suku terasing, dll) dalam perspektif hak asasi manusia”, paper presented at seminar of development on human rights, ministry of law and human rights indonesia. irianto, sulistyowati. 2012 vulnerable groups: kajian dan mekanisme perlindungannya. pusham uii. yogyakarta miles, matthew b. dan a. michael huberman. 2007. analisis data kualitatif. jakarta: ui pers. r.p tong. 1988. feminist thought, a more comprehensive introduction. colorado. westview press. laws and regulations constituion of republic indonesia, 1945 law no. 39 of 1999 concerning to the human rights law no. 23 of 2002 of protections to the children law no. 23 of 2004 on the elimination of domestic violence ministry of women empowerment and children protection regulation, no. 1 of 2010, concerning to the minimum standard services (spm, standar pelaynanan minimal), integrated services for women and children of victim of crimes. local regulation of central java, no. 2 of 2009, concerning to the implementation of protection to the victims of crime based on gender and children. governor of central java decree, no. 411/91/2009 on november 16, 2009, concerning to the establishment of integrated services for women and children of victim of crimes in central java. governor of boyolali regulation, no. 21 of 2015. 24 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang ristina yudhanti, [et.al] jils 2 (1) may 2017, 15-24 http://journal.unnes.ac.id/sju/index.php/jils law adagium judex herbere debet duos sales, salem sapientiae, ne sit insipidus, et salem conscientiae, ne sit diabolus a judge should have two silts; the salt of wisdom, lest he be foolish; and the salt of conscience, lest he be devilish 131 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. 131-144 issn 2548-1584 e-issn 2548-1592 poverty reduction in perspective of 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 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 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4(2): 140-159. setyawan, david putra. “analisa tindakan khusus penenggelaman kapal asing sebagai bentuk detterence effect”, online paper, universitas pertahanan, retrived from http://ekbis.sindonews.com/read/1092829/34/menteri-susi-ungkap-kronologi-tangkap-kapal-pencuri-ikan-terbesar-1457943014 http://ekbis.sindonews.com/read/1092829/34/menteri-susi-ungkap-kronologi-tangkap-kapal-pencuri-ikan-terbesar-1457943014 http://batam.tribunnews.com/2016/02/26/kerjasama-dengan-interpol-norwegia-tni-al-tangkap-kapal-illegal-fishing-fv-viking-di-bintan http://batam.tribunnews.com/2016/02/26/kerjasama-dengan-interpol-norwegia-tni-al-tangkap-kapal-illegal-fishing-fv-viking-di-bintan http://batam.tribunnews.com/2016/02/26/kerjasama-dengan-interpol-norwegia-tni-al-tangkap-kapal-illegal-fishing-fv-viking-di-bintan https://rechtsvinding.bphn.go.id/jurnal_online/penenggelaman%20kapal_ok.pdf https://rechtsvinding.bphn.go.id/jurnal_online/penenggelaman%20kapal_ok.pdf http://news.detik.com/berita/3164251/ditenggelamkan-ini-daftar-dosa-kapal-viking-di-laut-indonesia http://news.detik.com/berita/3164251/ditenggelamkan-ini-daftar-dosa-kapal-viking-di-laut-indonesia 146 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 https://www.academia.edu/9754703/analisa_tindakan_khusus_penen ggelaman_kapal_asing_sebagai_bentuk_detterence_effect, 2011 sunyowati, dina. “dampak negatif kegiatan iuu-fishing di indonesia”, paper, presented at national seminar “peran dan upaya penegak hukum dan pemangku kepentingan dalam penanganan dan pemberantasan iuu fishing di wilayah perbatasan indonesia”. ministry of foreign affairs and universitas airlangga, surabaya, 22 september 2014. 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, 2016, access 17 may 2016. wasundari, ni putu putri. “tinjauan hukum laut internasional terhadap tindakan illegal fishing yang dilakukan oleh 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 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 © 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 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 327 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 02, 2018 data of book author : bahder johan nasution published year : 2014 title : negara hukum dan hak asasi manusia language : indonesia, bahasa city published : bandung, west java, indonesia publisher : mandar maju isbn : 978–979–538–382–6 page : 286 pages; 26 cm volume 3 issue 02 november 2018 jils 3 (2) 2018, pp. 327-332 issn (print) 2548-1584 issn (online) 2548-1592 book review human rights and power of state: a book review negara hukum dan hak asasi manusia, bahder johan nasution virdatul anif virdatul anif students at faculty of law universitas negeri semarang  virdatulanif@students.unnes.ac.id copyright © 2018 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. the problems that will arise are understanding the concept of an ideal rule of law, how about the concept of human rights, protection of human rights, enforcement and how human rights are within the scope of national law. the aim is to find the ideal concept of the rule of law, concerning the state of law and the protection of human rights. the implementation of the concept of the rule of law is simply a state that places law as the basis of state power and the implementation of such power in all its forms under the rule of law. 328 http://journal.unnes.ac.id/sju/index.php/jils virdatul anif jils 3 (2) november 2018, 327-332 in published by mandar maju in 2014 in the third print there are 14 subchapters which explain how the concept of state law and human rights. the presence of the state law and human rights book as a supporting material for the law and human rights course and will complement and greatly provide knowledge and insight for law observers, students about the concept of the rule of law and the protection of human rights in indonesia. by aiming to be able to provide an understanding of the concept of legal state legally, but also provide understanding at the theoretical and philosophical level. whereas understanding of human rights are not only conceptual understanding but also understanding in the form of respect and protection of human rights which is implemented through the enforcement of human rights law. this book in writing uses indonesian. the use of indonesian as a language in writing this book is a good thing, considering that this book can be enjoyed by all readers not only law observers, students who are studying at the law faculty and political thinkers who are interested in exploring the country's legal and human rights. but it also needs to be how the concept of the rule of law develops in indonesia and its application in the international world, and also conceptual human rights from its substance in the amendment to the 1945 constitution concerning the regulation of changes in human rights. these fourteen chapters consist of preliminaries, concepts of thought about legal state thought, the theoretical foundation of the rule of law, indonesia's rule of law, the concept of justice in the state of law, the concept of justice according to the indonesian nation, understanding of human rights, philosophical and theoretical thinking about human rights humans, theoretical theories about human rights resources, rationalization of human rights from natural law to positive law, general statements about human rights, protection of human rights, human rights in national law and enforcement of human rights law in indonesia. in the first chapter which is an introduction, this chapter consists of two sub, namely the understanding of the rule of law and the relation of the state of law to human rights. in this sub-section, the introduction to the author explains the concept of the rule of law and the relationship between the state of law and human rights. in this sub-chapter the author reveals that there are still many debates regarding the notion of the rule of law itself. in particular what is meant by the rule of law in the real sense, we must first know fully the definition of the rule of law itself, because without understanding in advance the notion of the rule of law would be difficult to fully describe what is meant by the rule of law. debate about the concept of rechtsstaat and the rule of law concept, so many researchers and legal experts who wrote the existence of these concepts that debate. embryonically the idea of a legal state was revealed by plato, he introduced the term nomoi that good state administration is based on good legal arrangements. then politea and politicos. then perfected by aristotle. the debate about the concept of the rule of law, namely rechtstaat and rule of law, where rechstaat rests on the 329 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 02, 2018 european legal system, while the rule of law relies on the anglo saxon legal system or the common law system. the two legal systems have differences between the rechstaat concept and the rule of law, where rechstaat was born from a struggle against absolutism so that it is revolutionary, while the rule of law concept evolves evolutionarily. in this chapter the author discusses the differences in legal state systems. basically, the two countries highlighted very sharp differences, where the concept of the state law rechstaat shows the role of government officials means that people must submit to the law and prioritize the principle of rechmatigheid (the principle of legality that requires government actions to be in accordance with the law), while the rule of law concept is control the government in protecting human rights using the principle of equality before the law. we can examine the relationship between the legal state and human rights from the point of view of democracy, because human rights and democracy are humanitarian concepts and social relations that are born. the conception of democracy provides the basis and mechanism of power based on the principle of equality and human equality. the principle of democracy / popular sovereignty can guarantee the participation of the community in the decision-making process. for example law no. 39 of 1999 concerning human rights, the indonesian people understand the universal declaration of human rights 1948, is a statement of humanity which contains universal values that must be respected. the most important part of this introductory chapter is the sub-chapter on the relationship between the rule of law and human rights. the author answers the relationship between the legal state and human rights not only in a formal form in the sense that the protection of human rights is the main principle of the concept of the rule of law, but the relationship is seen in terms of material. material relations are illustrated by the act of implementing the state must rely on the rule of law as the principle of legality. in the second chapter, entitled the concept of thinking about the rule of law, the author discusses the concepts of recharge, rule of law, socialist legality, religious legality and islamic nomocracy. the method used in this sub-chapter is the comparison method. the author makes comparisons with several concepts of rule of law, conceptual concepts that become the object of comparison of the authors related to an overview of the concept of thinking about the rule of law. comparison of rechstaat and rule of law concepts where the difference is that the two concepts are supported by different legal systems, where the characteristic of the rechstaat concept is administrative and characteristic of the rule of law is judical. the similarity is that the two concepts together emphasize the protection of human rights. in the third chapter entitled the theoretical foundation of the rule of law there are several sub-chapters consisting of legal sovereignty theory, people's sovereignty and democracy, separation (division) of power and the theory of the rule of law with people's sovereignty. the author has brought various theories and thinkers pioneered by scholars, in the theory of legal 330 http://journal.unnes.ac.id/sju/index.php/jils virdatul anif jils 3 (2) november 2018, 327-332 sovereignty pioneered by krabbe who said that the legal position is above the state and because of that the state must submit to the law, then hans kelsen with the theory of stuefenbau. the theory of popular sovereignty pioneered the work of jj rousseau "du contract of social", the concept of social contracting and the division of power including thomas hobbes, john locke and montesquieu. the meaning of the theory is people's sovereignty, that the highest power is in the hands of the people. with the comparison method between theories with one another it can be concluded that the weakness of the law sovereignty theory proposed by krabbe is that the law obstructs one's legal feelings, even though it is very subjective. in the fourth chapter entitled indonesia negara hukum which consists of several sub-chapters namely the concept of the state of indonesian law, the concept of the ideals of indonesian law and the concept of indonesian legal politics. the concept of the indonesian law in article 1 paragraph (3) of the 1945 constitution states that indonesia is a state of law, which is based on law (rechstaat) not for mere power (machtsstaat). the superiority of the indonesian state is a legal state, the 1945 constitution as a basic law places the law in a decisive position in the indonesian constitutional system, its weakness is to determine whether a country is a legal state/not, the right instrument is the country's constitution. the concept of the ideals of indonesian law (rechtsidee) was pioneered by rudolf stammler, and gustav. in the indonesian state constitution the ideals of the law will not be separated from the development of the idea of indonesian civilization since independence. the legal aspiration adopted by indonesia is the basic ideology that originates in the opening of the 1945 constitution as the highest legal source and as moral in the life of the nation and state. the concept of indonesian legal politics in pancasila is the source of all legal sources. in the fifth chapter entitled the concept of legal state justice which consists of classical and modern thought, the concept of justice in classical thought is put forward by aristoles, plato, and agustinus. then the modern flow of liberalism emerged which contained love of tolerance and freedom of conscience. the concept of justice is based on the flow of philosophers, the concept is a lot of debate about the meaning of justice. justice has goals and characteristics. in the sixth chapter entitled the concept of justice according to the indonesian nation's view consists of sub-chapters namely according to pancasila, the formation of national law, and as the idea of national law. for the indonesian people, the relation between theory and justice based on pancasila is a conception and the perception of justice must be in accordance with the feelings of a nation. the principle of indonesia is a country based on law, the 1945 constitution as a legal basis. hans kelsen's thought that legal order in the formation of laws is hierarchical and dynamic. he looked as a stuefenbau. the question about what is grundnorm? because pancasila is a grundnorm or basic norm is the source of all sources of law that will be applied in indonesia. 331 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 3 issue 02, 2018 from the sub-chapters namely the term human rights, the history of the struggle for human rights, the struggle for human rights in developing countries. human rights, droits de i'homme, the term human rights cannot be separated from the development of human rights instruments, beginning with the universal declaration of human rights in 1948, preceded by the un charter and then the 1948 declaration. human rights conference in vienna that human rights are universal, cannot separated and interdependent and interconnected. magna charta 1215, petition of rights 1628, hobeas corpus act 1670, bill of rights 1689 and the universal declaration of human rights. in the course of history and the events behind the stages of human rights development through very long journeys, the essence remains one to promote the right to life, the right to freedom, the right to freedom. the concept of human rights struggle in developing countries concerns the origins of the philosophical basis and the way to formulate human rights. the author answers the question of why human rights are always related to development in developing countries? the reason is that most developing countries have approved the un declaration on the right to development in 1986 and linked human rights to the decision-making process by developed countries as a condition of providing assistance to developing countries. in the eighth chapter entitled philosophical and theoretical thinking about human rights consists of sub-chapters namely philosophical thinking about human rights, and theoretical. the author compares which thoughts are closer to the concept of human rights. theoretical thinking has conceptual human rights and has exceeded three generations, theoretical thinking around the 20th century, where the thought is a modern thought, but the wave of problems faced today is no longer a crime of genocide, humanity or war but more rooted in poverty and underdevelopment. in chapter nine, entitled theory theory about the source of human rights consists of sub-chapters namely adherents of natural law, legal positivism, marxist socialism, and the indonesian nation. the author uses the comparison method, which seeks the advantages of each of these views. in the concept of natural law, one part is the right in the form of natural rights because in the rights to natural law there is a universal justice system. the positivism theories of the teachings of john austin and hans kelsen, but their weaknesses were influenced by jean bodin's teachings on the sovereignty of the king. the advantages of this theory are not from god but the rights granted by the state. the view of marx max's marxist socialism is to prioritize progress in the economic field of a political right and civil rights. the view of the indonesian people on the source of human rights is that it is sourced from god, not from the state in chapter x entitled rationalization of natural law to positive law consists of several sub-chapters namely the concept of natural rights in the view of adherents of natural law and positive law. the thoughts of thomas hobbes, john locke, montesquieu, rousseau and immanual kant greatly influence the development of human rights. the view of human rights both 332 http://journal.unnes.ac.id/sju/index.php/jils virdatul anif jils 3 (2) november 2018, 327-332 derived from western thought and the indonesian view shows that human rights are recognized as their inherent rights in accordance with their dignity. in chapter xi entitled the general statement of human rights which consists of sub-chapters namely the meaning and universality. the author reveals about the universal declaration of human rights and the charter of the united nations expressing the concept of justice, social progress, freedom. the universal declaration of human rights does not have the power to be legally binding but only as a moral obligation. the declaration to advance the norms in morality and rights that are formulated is not a legal right but a universal moral right. the conclusion of the rights is a description of the provisions of the provisions contained in the un program and is an implementation of the un program. in chapter xii entitled protection of human rights consisting of subchapters namely human rights substance and respect for human right. the concept of freedom and guarantee of freedom cannot be separated from the system of values and principles that inspire. in a democratic society, freedom inherent in humans, guarantees of rights and rule of law form a trinity. respect and protection of human rights is not a moral obligation but a legal obligation. respect for human rights is an orientation for human rights regulation through optimal legal formation. in chapter xiii entitled human rights in national law which consists of sub-chapters namely human rights in the constitution and perpu. the mpr ri ratified the amendment to the 1945 constitution, the first amendment was ratified in the annual session of the republic of indonesia mpr 2000, 2001, 2002. changes in 2002 are listed in chapter xa on human rights. in accordance with the 1945 constitution which mandates the promotion and protection of human rights in community life, as well as nation and state. in chapter xiv entitled the enforcement of human rights law in indonesia which consists of sub-chapters namely the protection and legal recognition of human rights and human rights courts. the idea of protection and respect was adopted into the notion of limiting power (the flow of constitutionalism), the flow of which gave a modern color to the idea of democracy, so that constitutional protection of human rights was regarded as the main feature that must be in every democratic state of law. law no.26 of 2000 concerning the indonesian human rights court which has the authority to prosecute serious human rights violations, namely the ad hoc court. to ensure fair law enforcement and respect for human dignity, witnesses and victims are given legal protection through law no. 13 of 2003. the discussion on the state of law and human rights in this book and in the form of its presentation make this book has more value to be read by all people, both academics, students, practitioners and the government, especially for law faculty students. 69 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. 69-86 issn 2548-1584 e-issn 2548-1592 politics of law on the state control of oil and gas in indonesia: gas liberalization and the hesitancy of constitutional court mochamad adib zain 1 mochamad adib zain universitas gadjah mada, yogyakarta, indonesia jalan sosio justisia no. 1, faculty of law, universitas gadjah mada, bulaksumur, special residence of yogyakarta, indonesia  muadzin27@gmail.com article info abstract submitted on may 2016 approved on august 2016 published on november 2016 this study aims to examine in depth the legal political state control over oil and gas in indonesia. this research is a normative law by secondary law. based on the research can be argued that the existence of act no. 22 of 2001 on oil and gas can’t be separated from other state intervention. the substance oil and gas law dictation by imf and usaid. consequently oil and gas law is characterized by a liberal. it eliminates the mean of state control over oil and gas in indonesia. the constitutional court as a judicial institution that is given the authority to judicial review of the constitution less did his part well. the constitutional court only eliminated some arrangements liberalization in the act. keywords: constitutional court, the oil and gas law, politics, law 1 this article was developed from the author’s thesis entitled “political law on state control of oil and gas industry”, funded by isb program of cooperation between universitas gadjah mada, yogyakarta indonesia and agder university, norway. mailto:muadzin27@gmail.com 70 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils mochamad adib zain jils i (1) november 2016, 69-86 introduction at this time, it seems there is no country that does not need oil and gas. oil and gas is an important component and determination of a country’s economy. oil and gas been a support almost every activity undertaken by the state, therefore it will determine control of the economy and the world political arena. with the strategic position of oil and gas, whereabouts is not only seen as an economic commodity submissive to the law of supply and demands, but also in the domain of economic policy between countries. in the international arena, petroleum becomes strategic position due to the fact that increasingly depleted oil and gas reserves thinning in dependence of economic infrastructure and modern industry on oil as an energy source. 2 data us department of energy states that energy consumption is projected to rise 71% from 2003 until 2030 with fossil fuels is ranked top especially petroleum as the primary energy source, followed by natural gas, coal etc. 3 to illustration, world oil demand in 2003 is 80 million bph, up to 98 million bph in 2015 and will be 118 million bph on 2030. 4 based on the facts above, it is not wrong if put oil and gas as a commodity sensitive for grabs nations. indonesia is the country with the largest oil and gas reserves in southeast asia. 5 according to data from the ministry of energy, until 2015 indonesia has 60 hydrocarbon basins. 38 have been explored, whil 22 others are still carried out exploration. of basins have been explored, 16 basins already producing hydrocarbons, 9 basins have not produced even though it has been found hydrocarbon content, while the remaining 15 basins yet discovered hydrocarbon content 6 . total basins owned by indonesia is currently estimated to produce 87.22 billion barrels of oil and 594 , 43 trillion cubic feet of natural gas. 7 in indonesia, as in the international political economy, oil and gas has also become a major energy source in development as well as a mainstay in foreign exchange earnings. 8 besides important for the country, oil and gas has also become a necessity for almost the entire population of indonesia. therefore, oil and gas must be managed as well as possible to meet domestic needs and to provide the greatest welfare of the people. the mastery of basic constitutionally stipulated in article 33 paragraph (2) and (3) which states: 2 m. kholid syeirazi kholid syeirazi, m. 2009. di bawah bendera asing: liberalisasi industri migas di indonesia. pustaka lp3es, jakarta. p. 30. 3 ibid. 4 ibid., p. 31. 5 ibid., pp. 50-51. 6 kementerian esdm, peluang investasi migas di indonesia, http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-diindonesia.html accessed on november 11, 2015. 7 ibid. 8 ibid. http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html 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http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html 71 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 1) production branches which are important for the country and dominate the life of the people controlled by the state. 2) earth and water and natural resources contained in it are controlled by the state and used for the people’s welfare. unfortunately regulation oil and gas under the constitution that law no. 22 of 2001 on oil and gas derogate meaning of such authorization. law quo becomes the liberalization of the business of oil and gas to the detriment of indonesia and vice versa profitable for capitalists. this act has been review several times to the constitutional court and several times canceled clauses in it. in this study will be assessed on the liberalization regulation of oil and gas and how the constitutional court (mk) as an institution is given the function of keeping the constitution face the inconstitutional provisions. liberalization of oil and gas through law number 22 of 2001 in 1997, the rupiah fell on the us dollar. as a result, many banks lost, especially banks loans in foreign currency and does not hedge the loan. rate volatility coupled with a worsening cash flow banks caused banks facing liquidity problems. it causes people to lose confidence in the bank, so to pull money massively. consequently many of the banks to be closed are biased cause total paralysis economy. 9 from the economic crisis indonesia contracted by 14 percent and the rupiah climb very high to 14,800 rupiah per us dollar. 10 as is financial crisis indonesia again stuck in a circle of foreign debt as well as post 1965. to obtain debt indonesia must meet the requirements proporsed donors. terms of the proposed time is to make efforts in economic liberalization either through legislation, privatization, removal of exclusive rights to a state enterprise, removing restrictions in international trade, removing restrictions on foreign capital in the businesses and the elimination of government subsidies to its people. indonesia's main donors in the crisis of 1997 include the imf, world bank, adb, 11 sectors were liberalized include oil and gas, electricity, water etc. agenda liberalization as a condition for obtaining a loan for example put forward by the imf through a letter of intense (loi) which started before 9 bank indonesia, 2010, krisis global dan penyelamatan sistem perbankan di indonesia, bank indonesia, jakarta, p. 70. 10 m. kholid syaerazi, op.cit., p.1. 11 syamsul hadi dkk, 2012, kudeta putih: reformasi dan pelembagaan kepentingan asing dalam ekonomi indonesia, jakarta, indonesia berdikari. pp. 42-44. 72 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils mochamad adib zain jils i (1) november 2016, 69-86 suharto stepped down and passed on by further president. especially for oil and gas loi conducted in 2000, the memorandum of economic and financial policies medium-term strategy and policies for 1999/2000 and 2000. in this loi matter mastery oil formulated in two chapters, namely the reform and privatization of state-owned enterprises and on the energy sector. in chapter reform and privatization, stipulated in point 72 in the loi states: the government does not plan to establish holding companies for public enterprises such as arrangements would dampen competition and slow privatization. indeed, where appropriate, the government will unbundle effective monopolies and encourage competition. plans for restructuring pertamina and pln are being prepared and will be accelerated (see below). a strategy to improve the performance of other state monopolies, including ports, airports, telecommunications, and toll roads, will be prepared by end-march 2000 with assistance from the asdb and the world bank. 12 in the memorandum of understanding is clear that the imf has asked indonesia not to set up holding companies that are public. the government was also asked to slowly privatize state-owned companies has. for example, pertamina as a state company that holds the entire mining authority, and monopolized the exploitation of oil and gas through the psc should be deducted or removed most of their rights. steps to make the management of state enterprises to follow private companies will soon be done at this liberalization effort in collaboration with the imf with world bank and asdb. in the chapter the energy sector agenda of economic liberalization that is specific to oil and gas in the mou stated in points 80 to 82 which is the point in the reform of the governance of oil and gas, it is required to do indonesia is to replace the law of oil and gas, ensure business upstream and downstream being competitive internationally, ensuring the price of oil and gas in the country in accordance with the international market, eliminate fuel subsidies, special subsidies for poor families (exampel direct cash assistance), pertamina transformation into a limited liability company, eliminating the monopoly pertamina replaced by an independent agency to allocate contracts and overseeing exploration and production, the establishment of an independent agency to regulate the downstream sector, etc. all these provisions that must be included in legislation that the new oil. 13 indonesia as a country with an economy on the verge of destruction, once again subject to donor agencies such. indonesia must comply with all 12 imf, point 72 letter of intens (loi) memorandum of economic and financial policies mediumterm strategy and policies for 1999/2000 and 2000 http://www.imf.org/external/np/loi/2000/idn/01/ accessed on december 11, 2015. 13 point 80-82 ibid., http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ http://www.imf.org/external/np/loi/2000/idn/01/ 73 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 requirements of the clause in the memorandum of understanding and should include it in the rules of law. government regulation no. 44 of 1960 regarding oil and gas and the law no. 8 of 1971 on pertamina replaced by act no. 22 of 2001 on oil and gas. an act to remove the meaning of the state's control is not even designed by indonesia. this act is "orders" of america through usaid. this was recognized by usaid in the report which states: usaid helped draft new oil and gas policy legislation is submitted to parliament in october 2000. the legislation will increase of competition and efficiency by reducing the role of the state-owned oil company in exploration and production. a more efficient oil and gas sector will lower prices, increase of product quality for consumers, increase of government revenues, and improve water quality. usaid will continue to work on developing the implementing regulations for the oil and gas legislation. 14 according to usaid act is designed aiming to increase competition and efficiency in the oil and gas companies. effort to achieve this is by reducing the role of the state oil company. usaid assistance designed not only in the manufacture of the act only, but also in the implementation of rules and rulemaking derivative. this confession clearly showed us how the interests of the american oil and gas industry in indonesia. with the involvement of usaid public should be angry, especially the liberalization efforts made to reduce subsidies and raise fuel prices as well. it is a policy that is unpopular and against the will of the people is still facing a crisis. anticipating the possibility that upheaval, usaid poured funds amounting to us$ 4 billion to the central and regional parliaments, nongovernmental organizations, the media and universities to help smooth the early stages of liberalization. the funds will be used to develop programs related to the energy sector issues, including the removal of oil subsidy. 15 to further safeguard and ensure the implementation of economic liberalization agenda indonesia, usaid recognizes that the document has to intervene in the appointment of the managing director of pertamina in 2000. the president director raised was a reformer who had a private orientation. this is done in order to expedite the reform agenda in the body pertamina. in addition, the more important thing is the usaid expressed in all the above efforts carried out jointly with the world bank and the asian development bank. 16 14 usaid, budget justification to the congress, anex ii asia and the near east, http://pdf.usaid.gov/pdf_docs/pdabu805.pdf accessed on december 11, 2015. 15 ibid. 16 ibid. http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf http://pdf.usaid.gov/pdf_docs/pdabu805.pdf 74 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils mochamad adib zain jils i (1) november 2016, 69-86 the things above show that foreign intervention in an attempt to liberalize the oil and gas sector is very strong. the process of liberalization of the energy sector is waged with great scenario to seize control of oil from opec countries. through liberalization, controls the world's oil will move to transnational, especially the us-flagged. this is logical given the advanced countries such as the united states is relying economies of the oil supply. oil and gas sector liberalization and privatization not only cultivated in indonesia but also in some oil-producing countries are others like venezuela, nigeria and algeria, iraq, libya, iran. even more egregious, if regulatory liberalization efforts did not succeed then the choice is the united states and its allies did not hesitate to use military invasion. 17 if in the middle east and latin american agenda aimed at the liberalization of the upstream sector in indonesia is targeted more downstream sector. this is because most of these countries have huge oil reserves that attract industrialized countries. on the other hand, the downstream sector is not attractive because the population of the countries there is relatively little. by contrast in indonesia, oil reserve to support the upstream sector is not as big as in countries of the middle east and latin america. even the indonesian oil and gas production had tended to decline and began to import oil to meet domestic demand. with a population of 220an million people, indonesia is a lucrative oil and gas market. therefore, the weakening of state companies that can’t meet domestic demand, eliminating subsidies, the release of oil and gas prices in a perfect market competition is a priority of the liberalization agenda. 18 in the national political level, effort to liberalize indonesian economy is supported by the executive. the government has become a collaborator for foreign interests in indonesia. the government filed after the bill twice to get the discussions with the parliament. filing after the bill first proposed in 1999 in the reign of bj habibie. the subject of the current bill is to reform the body pertamina. the reason the government proposed is a monopoly pertamina has led to inefficiency and a fertile field for corruption, collusion and nepotism. because of that monopoly exploitation of oil and gas by pertamina should be removed. pertamina took competitors in pursuit of oil and gas. if the monopoly pertamina trimmed, all companies can enter the competition and make production more efficient. 19 parliament rejected the bill on the grounds that harm the interests of the state and contrary to article 33 of the constitution republic of indonesia of 1945. other than, pertamina doing fierce resistance on the draft legislation. the reason for disapproval is due to oil and gas bill prefers free 17 naomi klein, 2008, shockdoctrine : the rise of disaster capitalism dalam adrian sutedi, hukum pertambangan. sinar grafika, jakarta., p. 23. 18 m. kholid syaerazi, op.cit., p. 211. 19 ibid p 177. 75 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 markets and threaten the stability of availability of oil and fuel prices in indonesia. 20 thus oil and gas bill on first round failed to proceed into law. in the reign of abdurrahman wahid, as a consequence of the signing of letter of intent with the imf then he should apply for oil and gas bill to parliament to grant the imf and other donors can be availed. volume ii after the bill rests on the same thing, namely the liberalization of the oil and gas sector both upstream and downstream. pertamina was subjected to disarm setting authority. in this second submission, the house did not directly criticize the government, but refused. moreover, in order not repeated failures such as in oil and gas bill vol 1, the donors and multinational companies to press the government to replace president director of pertamina. pertamina’s new director is a former ceo at pt. caltex pacific indonesia one of the companies transnational oil and gas in indonesia. a new director of pertamina supports liberalization agenda in the oil and gas sector. 21 the bill of act on oil and gas 2 nd volume after the bill was originally obtained the views and attitude different from the house. faction pro and cons of the substance of the bill is in the power balance. in the midst of the debate the discussion of oil and gas bill 2 nd volume, a new scandal happened? pertamina. the case concerns the mark up oil refineries projects oriented export refinery (exor i) in balongan during the period january to december 2000. such corruption committed by tabarani ismail former pertamina processing director estimated state losses worth 1.7 trillion. 22 with the condition it strengthens the pro arguments against the restructuring and abolition of monopoly pertamina in parliament. the pro liberalization of gas to get new ammunition for the argument broke party who does not want a market economy. it is true there have been corruption, collusion and nepotism in pertamina. but accuse matter of business monopoly as the only cause is misguided thought unforgivable. the root of corruption in pertamina is wrong management controlled by the military at pertamina. lack of accountability within the management of pertamina been allowed by the government because the government enjoyed also the flow of funds from the corruption of the government enjoyed also the flow of funds from the corruption of it. there were no reports of financial book-keeping there are no reports on business operations so that pertamina is like a state within a state. due to lack of accountability and corruption in pertamina, pertamina in 1975, bankruptcy, debt dependents exceeds us$ 10 billion, equivalent to 30% of indonesia's gdp. 23 20 m. kholid syaerazi, op.cit., pp. 176-177. 21 ibid., hlm. 77. 22 m. kholid syaerazi. op.cit.,hlm. 179. see also, antaranews, “tabrani ismail mulai disidangkan”, http://www.antaranews.com/berita/58779/tabrani-ismail-mulaidisidangkan accessed on december 11, 2015. 23 rajeswary ampalavanar brown, “indonesian corporations, cronyism, and corruption”, modern asian studies, vol. 40, no. 4 (oct., 2006), p.964. see also harold crouch, http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan 76 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils mochamad adib zain jils i (1) november 2016, 69-86 finally, with a variety of political intrigue at the top of the liberalization of oil and gas in indonesia managed to do even though the final stages of the legislation is accompanied minderheidsnota. if you examine the settings in law number 22 year 2001 on oil and gas, the substance is not far from being dictated by the imf, usaid, world bank and asian development bank. oil and gas is no longer regarded as the country's economic capital is important and mastering lives of many people. oil and gas market is seen as a commodity that should be subject to the laws of market liberalism. they are already deviated from the spirit of article 33 of the constitution republic of indonesia year 1945. effort to achieve the greatest prosperity of the people is becoming increasingly distant from the fire roasted. the constitutional court versus liberalization of oil and gas the constitutional court several times to review on law no. 22 of 2001 on oil and gas. as a benchmark for understanding the political constellation of the oil and gas law, the court gives meaning words that are controlled by the state of article 33 paragraph (2) and (3) the constitution nri 1945 mk. giving meaning controlled by the state court had first performed in decision number 001-021-022 / puu-i / 2003 which tested the law no. 20 year 2002 on electricity. the court reiterated that the state authority comes from the people's sovereignty. 24 opinion of the court gained legitimacies in the philosophical level based on the theory of social contract. in this concept, people do form a state social contract. in the contract the people give part of their rights to the state to care for. the consensus in the social contract embodied in the constitution as the supreme agreement of all citizens. 25 the above also explains the reason of state control instead earmarked for the country itself but rather to create the greatest welfare of the people. objects that are controlled by the state were classified by the constitution into two types. first, control of the production branch which is important for the state and live of many people. second, is control on natural resources. constitutional arrangements on the mastery of the production “generals and business in indonesia”, pacific affairs, vol. 48, no. 4 (winter, 1975-1976). p.525. 24 constitutional court decision no. 001-021-022 / puu-i / 2003 concerning case testing act no. 20 of 2002 on electricity of the constitution nri 1945, december 21, 2004, see also case decision number 002 / puu-i / 2003 testing the case concerning act no. 22 of 2001 on oil and gas to the nri constitution of 1945, january 4, 2005. 25 m. laica marzuki, “konstitusi dan konstitusionalisme”, jurnal konstitusi, vol. 7, no. 4, agustus 2010, p. 2. 77 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 branch that is important for the state and lives of many people have valid normative power as follows: 1. the constitution gives authority to the state to control the production branches which are important for the country and dominate the life of many 2. the authority addressed to them either to be or who have worked on the production of which is important for the country and that dominate the life of many. in the production branch that kind of production does not exist or will be cultivated, the type of production is important for the state and the life of many countries have the right priority / precedence that states pursue their own and the master branch of production and at the same time prohibits individuals or private to commercialize the production branch 3. in the branch of production which has been managed by individuals or private and that production is important for the state and lives of many people, on the authority granted by article 33 paragraph (2) of the 1945 constitution, the state can take over the production branch in a manner that is in accordance with the rules fair law. 26 while the constitutional arrangements on the state control over natural resources stipulate that overall natural resources of indonesia in the form of the earth, water, air, and all the wealth contained therein controlled by the state. 27 this means that there is no segregation which should be controlled by the state and which are not. 28 from the meaning of the state's control by the court in the above implies the permissibility of state monopoly in controlling the production branches which are important for the country and dominate the life of many. such things can be seen from the opinion of the court that provides privileged form of precedence in concession rights for the production of which branch of an existing or new production has not grown as well as providing the prohibition concessions for individuals or private. it thus further strengthened with the opinion of the court concerning the permissibility of taking over the production branch cultivated or private individuals. individual or private individual or a foreign first allowd to join exploits if the state has not been able to capital or the technology to do so. if the state is able to then it should 26 constitutional court decision no. 001-021-022 / puu-i / 2003, ibid., p. 330. 27 see article 2 (1) of law no. 5 of 1960 on the basic regulation of agrarian principles (state gazette of the republic of indonesia year 1960 number 104 additional state gazette no. 2043) 28 in practice, these resources will separate those that must be done directly by the operation of the state and which may be handed over to the private sector. between two objects is controlled by the state, is not always completely separate. there are times when a resource is classified as minerals that strategy for the country so as to qualify as a branch oil and gas production is important and dominate the life of many people. it applies to oil and natural gas are natural resources as well as the production branches which are important for the state and dominate the life of many people. 78 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils mochamad adib zain jils i (1) november 2016, 69-86 be done alone for the results obtained optimal for realizing the greater welfare of the people. furthermore, the court describes the authority of the state of the conception of the state’s control which includes holding policy (beleid), acts of management (bestuursdaad), setting (regelendaad), management (beheersdaad) and supervision (toezichthoudensdaad) for the purpose of the prosperity of the people. fifth those powers apply cumulatively, each of which can’t be separated from each other. the cumulative imposition important to refute the government's view that says that the state's control interpreted as the state regulates (as regulator). 29 in the implementation of the authority's fifth mk elaborate as follows: the maintenance of function of the state (bestuursdaad) provided by the government with authority to issue and revoke permission of facilities (vergunning), licenses (licentie) and concessions (concessie). the regulating of the country (regelendaad) is done through legislative authority by the parliament and the government, and regulation by the government. management functions (beheersdaad) carried out through the ownership of shares (share-holding) and/or through direct involvement in the management of state-owned enterprises or state owned legal entity as institutional instrument, through which the state, cq goverment, leveraging its control over the sources of wealth for used for the greatest prosperity of the people. likewise, the function of oversight by the state (toezichthoudensdaad) conducted by the state, cq goverment, in order to monitor and control that exercise of control by the state over the resources in question really do for the greatest prosperity of the people. 30 the concept of mastery offered by the constitutional court confirms and complements the meaning that has been given by the bal. meaning by the court about the state’s control become a benchmark in each test laws that regulate oil and gas. although the court has made the signs above, in practice some of the court decision does not fully comply with these references. there are several contradictory things between these references with the decision of the court in the subject of the petition. this applies also to the testing of oil and gas law. thus the role of the constitutional court in the legal political state control over oil and gas are not optimal. for example in two court decision that tested oil and gas law the constitutional court decision number 002/ puu-i/2003 and the decision of the constitutional court number 36/puux/2012. the two decisions have enormous influence and political 29 constitutional court decision no. 001-021-022 / puu-i / 2003, ibid., pp 333-334. see also case decision number 002 / puu-i / 2003 concerning testing act number 22 of 2001 on oil and gas of the constitution nri 1945, ibid., pp. 208-209. 30 ibid. 79 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 implications directly against the laws of state control over oil and gas in indonesia. in the first decision, the applicant in this test almost simultaneously also examined the law no. 20 year 2002 on electricity. the applicant’s argument is built on two laws tested are exactly the same as that regulation is built on the principle of liberalization. in the concept of liberalization of the state’s role is reduced, the remaining oil and gas industry and electrical power delivered to the market competition. state stands only as regulator meaning that state just only a night-guard. the act of electricity (electricity law) overall annulled by the court by reason of the principle of unbundling as the main paradigm. that is a principle which separates the upstream and downstream business to be done by two different companies. given this principle then each separate companies will create their own profit cost so that the price of the product will be expensive. expensive electricity prices would burden the people. this violates the duty of the state to provide welfare. 31 unlike the case on the electricity law, the oil and gas law although also the principle of unbundling but not canceled by the constitutional court. no cancellation of the oil and gas law raises questions. the court argued that the unbundling arrangements must be understood in order to avoid the centralization of control of oil and gas on the one hand so that it leads to monopolies that harm the public interest. 32 this is contradictory to the opinion of the court in the previous decision. even contradict with other opinions in the decision. the court was also recognizes the exploitation of oil and gas as a monopoly by the state. the court stated: however, the provisions of the article must be interpreted as not applicable to business entities that have been owned by the state that actually should be empowered in order to become stronger state control. article 61, which included the transitional provisions should be interpreted to mean that the transition is limited to the status of pertamina to be such and does not abolish its existence as entities that are still conducting business activities upstream and downstream activities, although for the upstream and downstream activities shall be conducted by two board enterprises “pertamina upstream” and “downstream pertamina” both of which are still controlled by the state. 33 the court stated that pertamina should perform upstream and downstream activities. unfortunately, in the conclusions of the constitutional court did not obey previous premises to become unsynchronized. although pertamina pursue upstream and downstream sectors, but the court requires 31 constitutional court decision no. 001-021-022 / puu-i / 2003, ibid., p.350. 32 decision on case number 002 / puu-i / 2003, ibid, p. 225. 33 decision on case number 002 / puu-i / 2003, ibid, p. 225. 80 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils mochamad adib zain jils i (1) november 2016, 69-86 the exploitation of upstream and downstream sector undertaken by two companies (a subsidiary of pertamina) with a reason to avoid monopoly. upon the opinion of the constitutional court, the question is whether there should be no monopoly of oil and gas by the company? based on the setting of act number 5 of 1999 concerning the prohibition of monopolistic practices and effort healthy, monopoly allowed on activities related to the production branches which are important for the country and dominate the life of many people. 34 of the electricity and oil and gas enter the category that should be monopolized by country. in addition, the prohibition of monopoly by requiring solving efforts to work on each of the sectors it violate a growing trend in the business of oil and gas in the world. exxon and the car which is a separate company just merged. the two companies before the merger also have been integrated operations from upstream to downstream. this also applies to other multinational companies. besides failing to cancel the oil and gas law, the court also maintains the settings on the appointment of non-soe enterprises by bp migas to sell oil and gas part of the ppp government. according to the applicant, it is susceptible to corruption in state losses. on this proposition, the court stated are not authorized to assess the problems of combating corruption. 35 has the maintenance of such arrangements sometimes made state control over the oil and gas is lost. example of the loss of state control is tough cases gas sold by beyond petroleum to china with a very cheap price would be detrimental to the country. 36 although the view of most of the judicial reviews contented mk failed to restore state control over the oil and gas that has been usurped by act no. 22 of 2001 on oil and gas. some things which the court granted the judicial review of law quo ie cancellation of article 12 paragraph (3) of the authorization of a business entity or a permanent establishment by the minister; article 28 paragraph (2) and (3) of the oil pricing mechanism to be submitted on the market; and article 22 paragraph (1) of domestic marketing obligation (dmo) is able to provide little deterrence for the liberalization of oil and gas in indonesia. in connection with the cancellation of article 12 paragraph (3) is the grant of authority from the government to the business entity or permanent establishment would eliminate state control. it passed away of meaning granting authority in the state administrative law means devolution of power 34 see article 51 of law no. 5 of 1999 on prohibition of monopoly practices and unhealthy effort (state gazette of indonesia year 2003 number 70, supplement to the state gazette of the republic of indonesia number 4297) which states monopoly and centralization of activities related to the production and or marketing goods and or services that dominate the life of many well as production branches which are important for the state governed by law and organized by the state-owned enterprises and or body or institution established or designated by the government. 35 ibid., 36 m. kholid syaerazi, op.cit., p.199. 81 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 from the authority giver that country to another party to carry out this authority. this is opposed to the construction of the law established by the act a quo which determines that the implementation of the right to control the country carried out by the government as the holder of mining rights. 37 granting authority to businesses is tantamount to handing a mining concession to business actors. this will make indonesia back to the concession of indische mijnwet system that has long resisted and abandoned. cancellation of these provisions is appropriate by the court to maintain control of the country. besides about empowerment court also disagreed with article 28 paragraph (2) and (3) the price of gas delivered to the market mechanism and limit government intervention limited to social responsibility for certain groups. the elucidation of article 28 paragraph (3) explained that the social responsibility for the provision of special assistance in lieu of subsidies to certain consumers for the type of fuel particular and the government set the natural gas pricing policy for household and small customers as well as the use of other specified. it is explains why the arrangement when fuel prices reduced the subsidies in 2006, the government made a direct cash assistance policy and seeks to convert from fuel oil to lpg. construction will thus make the liberalization of the oil and gas more perfect. 38 with the opening of competition in the downstream sector and plus pricing through market mechanisms that benefit employers will be more than doubled. the community will bear the high price of fuel and the government must spend big to provide special assistance. by the court, the liberalization of the oil prices thwarted by repealing the provisions of article 28 paragraph (2) and (3). the court found that the government's intervention in pricing policies should be prioritized authority for the production of an important branch and / or dominate the life of many. 39 the last thing the constitutional court granted in this decision is the dmo. mk annul article 22 paragraph (1) associated with the word "most". of the word only establish a floor above without providing benchmark will be the lowest limit for the availability of oil and gas in the country. with only the top set limit, businesses could only deliver his share very little so most will be sold to the international market when the price is higher. it leads to the supply of oil and gas in the country forced the government to import less. therefore, these provisions should be abolished because it is not in accordance with article 33 of the constitution nri 1945. 40 and mk prediction proved rights, in 2004 indonesia changed its status from a net importer and exporter in 2008 out of the opec membership. had such provision is not canceled and the burden borne by the 37 decision on case number 002 / puu-i / 2003, ibid, p.222. 38 see loi memorandum of economic and financial policies medium-term strategy and policies for 1999/2000 and 2000 39 decision on case number 002 / puu-i / 2003, ibid, p.227. 40 ibid., p. 231. 82 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils mochamad adib zain jils i (1) november 2016, 69-86 government budget will be higher because it must import more oil and gas from the outside. the constitutional court is the second discount enormous influence for the political state control over oil and gas law in indonesia is the constitutional court's decision number 36 / puu-x / 2012. in this ruling the court cancelled bp migas to provide construction in the upstream oil and gas concession contract and strengthen the role of soes. bp migas was cancelled because its existence is to degrade the state’s control. it is given in the regulation of law number 22 year 2001 bp migas is positioned as a representation of the state. as a representation of the state, bp migas only give the function of control and supervision of the management of natural resources of oil and gas. the regulation in this case, the state government can not do directly over the management of natural resources according to the court in order to provide the greatest welfare of the people, if the five functions of state control can not be done then the whole state authority given levels. the first level and most important form of control over the country is the country doing direct management of natural resources, in this case oil and gas, so that the state benefit that is greater than the management of natural resources. the second level is the state policy making and handling, and function in a third country is the regulatory and supervisory functions. throughout the country has a good ability of capital, technology, and management in managing the natural resources, the country should choose to undertake direct management of natural resources. 41 the existence of bp migas is functioning only as controllers and supervisors will further consequences first, the government can not directly manage or refer directly state-owned enterprises to manage all areas of work in the oil and gas upstream activities; second, after bp migas signed the psc, then immediately also state bound to the entire contents of the psc, which means, the state deprived of their liberty to make regulations or policies that conflict with the contents of the psc; third, not maximum profit for the state of welfare of the people, because of the potential for large gains control of oil and gas by legal forms fixed or private legal entity which is based on the principle of fair competition, fair and transparent. 42 with the dissolution of bp migas, the court had to restore state control over oil and gas in appropriate conditions. in addition, the court also keep the spirit of article 33 of the constitution indonesia 1945 attack liberalism. mk remove one of the main core of the agenda of liberalization in the intervention by the imf, world bank etc. 43 with the dissolution of bp migas country can realize energy sovereignty easier and the state is no longer in the shadow of the international lawsuit by the private sector if it violates the contract. 41 constitutional court decision number 36/ puu-x / 2012, op.cit., p.101. 42 ibid, p.101. 43 imf, loc.cit., 83 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 the dissolution of bp migas also correlates with the law regarding the construction contract for the development of oil and gas in indonesia. during this contract scheme carried out by bp migas is between the government and the private sector. in the contract, the state must adhere to the principles of the contract, even though the state provides the minimum requirements, namely: i) ownership of natural resources in the government until the point of delivery, ii) management control operations are at bp migas, and iii) capital and risks shall be borne by business entities or permanent establishments. civil contract put both parties on an equal footing. if the state violates the contract, then the state can be defeated in court. civil contract degrades the meaning of state control. therefore, according to the court the relationship between the state and private sector in the management of natural resources can not be done by the civil relationship, but will have a relationship that is public in the form of concessions or licensing is fully under control and state power. 44 with the dissolution of bp migas and the abolition of contract scheme b to g then once the court also strengthen the role of soes. soe will be positioned as an arm of government in managing oil and gas. it is first and foremost in the level of state control. soe as its foundation will be given permission management or concession or other public relations of the country, while the mining rights retained by the government. if soes have not been able to do it yourself then soe can enter into contracts with other parties. contracts are not b to g anymore but b to b, among fellow business entities. with this construction, the state authority would be perfect. countries can perform all of its functions in the control over production branches that are important and dominate the life of many people and control over natural resources simultaneously. if you look at these decisions, the court did not frontally strong efforts in the legal political state control over oil and gas in indonesia. but it should be appreciated that from one decision to another decision which will be illustrated how such efforts do. sometimes it is done as a political strategy so that countries do not face international pressures. as well as giving the decision number 002/puu-i/2003, if the court cremates to cancel the entire law as the law of electricity, the credibility of the government and the state in the eyes of businesses, investors, professionals and stakeholders will be destroyed and will cancel the contract worth billions of dollars that have been signed. 45 it certainly would make indonesia slumped after the economic crisis. things should be appreciated in the role of the court in several decisions of the constitutional court consistent is to gradually restore the meaning of state control. 44 constitutional court decision number 36 / puu-x / 2012, op.cit., pp.109-110. 45 m. kholid syaerazi, op.cit., p. 204. 84 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils mochamad adib zain jils i (1) november 2016, 69-86 conclusion given the liberalization agenda as evidenced by the constitutional court ruling on act no. 22 of 2001 on oil and gas act should be replaced. in forming oil and gas law to forward that should be the only guideline is the constitution nri 1945. this act should follow up any decision of the constitutional court so that in the future does not end with the cancellation. the focus in the regulation should not only on control by the state, even more important is to be able to provide appropriate welfare of people who aspired by the state. bibliography antaranews, “tabrani ismail mulai disidangkan”, available at http://www.antaranews.com/berita/58779/tabrani-ismail-mulaidisidangkan brown, rajeswary ampalavanar, “indonesian corporations, cronyism, and corruption”, modern asian studies, vol. 40, no. 4 (oct., 2006) bank indonesia. 2010. krisis global dan penyelamatan sistem perbankan di indonesia. jakarta: bank indonesia. crouch, harold, “generals and business in indonesia”, pacific affairs, vol. 48, no. 4 (winter, 1975-1976). hadi, syamsul, dkk, 2012, kudeta putih: reformasi dan pelembagaan kepentingan asing dalam ekonomi indonesia, jakarta, indonesia berdikari. imf, point 72 letter of intens (loi) memorandum of economic and financial policies medium-term strategy and policies for 1999/2000 and 2000, http://www.imf.org/external/np/loi/2000/idn/01/ kementrian esdm, “peluang investasi migas di indonesia”, available at http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluanginvestasi-migas-di-indonesia.html kepala biro perencanaan dan kerja sama kementrian esdm, “membangun kedaulatan energi nasional”, available at http://musrenbangnas.bappenas.go.id/files/pramus/kedaulatanenergi /membangun%20kedaulatan%20energi%20nasional.pdf. marzuki, m laica. “konstitusi dan konstitusionalisme”, jurnal konstitusi, vol. 7, no. 4, agustus 2010. morse, edwar l. a new political economy of oil? journal of international affairs vol. 53 no. 1 fall 1999. sutedi, adrian, 2011. hukum pertambangan. sinar grafika, jakarta. http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.antaranews.com/berita/58779/tabrani-ismail-mulai-disidangkan http://www.imf.org/external/np/loi/2000/idn/01/ http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://www.esdm.go.id/berita/artikel/56-artikel/4586-peluang-investasi-migas-di-indonesia.html http://musrenbangnas.bappenas.go.id/files/pramus/kedaulatanenergi/membangun%20kedaulatan%20energi%20nasional.pdf http://musrenbangnas.bappenas.go.id/files/pramus/kedaulatanenergi/membangun%20kedaulatan%20energi%20nasional.pdf 85 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 syeirazi , m kholid. 2009. di bawah bendera asing : liberalisasi industri migas di indonesia. pustaka lp3es, jakarta. usaid, budget justification to the congress, annex ii asia and the near east, available at http://pdf.usaid.gov/pdf_docs/pdabu805.pdf laws and regulations constitution of the republic of indonesia of 1945. constitutional court decision number 36/puu-x/2012 testing act number 22 of 2001 on oil and gas of the constitution nri 1945. decision of the constitutional court case number 002/puu-1/2003 testing act number 22 of 2001 on oil and gas of the constitution of 1945. law no. 5 of 1960 on basic regulation of agrarian principles (state gazette of the republic of indonesia of 1960 number 104 additional state gazette no. 2043). law no. 5 of 1999 on prohibition of monopoly practices and unhealthy effort (state gazette of the republic of indonesia of 2003 number 70, supplement to state gazette of the republic of indonesia number 4297) law no. 22 of 2001 on oil and gas (state gazette of the republic of indonesia of 2001 number 136, supplement to the state gazette of the republic of indonesia number 4152). 86 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang http://journal.unnes.ac.id/sju/index.php/jils mochamad adib zain jils i (1) november 2016, 69-86 law adagium dormiunt aliquando leges, nunquam moriuntur laws sometimes sleep but never die 79 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. 79-82 issn 2548-1584 e-issn 2548-1592 book review revealing the other side of human rights issue: how we look to the existed various problems ridwan arifin ridwan arifin staff at legal aid center, faculty of law, universitas negeri semarang k building, 1st floor, sekaran campus, gunungpati, semarang, indonesia  ridwan.arifin@mail.unnes.ac.id introduction human rights in many aspects recognized as a serious issue, and universal declaration of human rights (udhr) emphasized that humanity‟s yearning for respect, tolerance and equality goes a long way back in history, but the curious thing to note is that, although our societies have in many respects made great strides in the technological, political, social and economic fields, contemporary grievances remain very much the same as they were hundreds, even thousands of years ago. 1 for the substance of human rights, the meaning of rights and what kind of rights that should be protected or fulfill were recognized globally or internationally acceptance, in which human rights should be fulfill with applicable laws and regulations. 1 see universal declaration of human rights (udhr) 80 ridwan arifin jils 2 (1) may 2017, 79-82 the concept of human rights, basically belong to the individual in his or her equality as a human being, who cannot deprived of their substance in any circumstances, meaning that these rights are thus intrinsic the human condition. the universal declaration of human rights (udhr), and the international covenant on economic, social, and cultural rights all give expression to this fundamental ethical basis in their first prolog paragraphs by recognizing “the inherent dignity and…the equal and inalienable rights of all members of the human family”. here, then, is an expression of the principle of universality of rights, including the right to equal protection before the law and by the law, which, as will be seen in chapter 13, is a fundamental principle conditioning the entire field of international human rights law. 2 the third preambular paragraph of the universal declaration of human rights states 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.” the statement means that, in order to fulfill the rights of people, they must be effectively protected by domestic legal systems. the principle of the rule of law can thus also be described as an overarching principle in the field of human rights protection because, where it does not exist, respect for human rights become illusory. 3 the problem comes from the application of laws and regulations to provide an effective protection for people. how can we measure that protection is has been fulfilled, and how can we ensure that fulfillment was effective implemented? the research handbook on international human rights law, that arranged by some contributors, provides more broader issue and application of human rights protection. this book consists of twenty-one sub-theme that each theme provides some contemporary cases in human rights. starting with the united nations charter development especially in human rights issue, this book ended by highlighted the importance of education as one of ways to develop awareness of people. book edited by sarah joseph—professor of law and director on castan centre for human rights law monash university australia—, and adam mcbeth—senior lecturer and deputy director, castan centre for human 2 see international human rights law and the role of the legal professions: a general introduction, “human rights in the administration of justice: a manual on human rights for judges, prosecutors and lawyers”, p.4. 3 ibid., p. 6. 81 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 rights law, monash university, australia—is one of series books from research handbook in international law. one of interesting part of this book is contemporary cases reproduced in the simple way to understand. this book divided some issues into specific issue for certain explanation. one of, is part on global enforcement of human rights, in which a naming and shaming was become very serious problem for the states. none of the human rights institutions discussed above are able to make legally binding decisions, unlike, for example, the regional human rights courts. their powers of ‘enforcement’ lie in the process of naming and shaming a state that is engaged in human rights abuses. states are named in the public reports of the treaty bodies, and some ‘shame’ is attached to their adverse findings. states are exposed to more pronounced shame in country resolutions by their peers in the political bodies such as the former chr (commission on human rights) and the council, or in reports to those bodies from special rapporteurs (p.26 par.2). no government enjoys being the subject of such shaming processes, and even the most powerful states will lobby to avoid such consequences. for example, china lobbied fiercely (and successfully) for many years to avoid a country resolution against it in the chr (p.26 par.3). this book, research handbook for international human rights, provides some special issue, namely: the united nations and human rights by sarah joseph and joanna kyriakakis; economic, social, and cultural rights: an examination of state obligations by manisuli ssenyonjo; extra-territoriality: universal human rights without universal obligations? by sigrun i skogly; non-state actors and international human rights law by robert mccorquodale; ngos and human rights: channels of power by peter j spiro; human rights and development by stephen p marks; gender and international human rights law: the intersectionality agenda by anastasia vakulenko; refugees and displaced person: the refugee definition and „humanitarian‟ protection by susan kneebone; international criminal law by elies van sliedregt and desislava stoitchkova; the four pillars of transnational justice: a gender-sensitive analysis by ronli sifris; the international court of justice and human rights by sandesh sivakumaran; the council of europe and the protection of human rights: a system in 82 ridwan arifin jils 2 (1) may 2017, 79-82 data of book author : sarah joseph and adam mcbeth (eds) published year : 2010 title : research handbook on international human rights law language : english city published : cheltenham, glos, united kingdom publisher : edward elgar publishing isbn : 979-99139-o-x need of reform by virginia mantouvalou and panayotis voyatzis; the interamerican human rights system: selected examples of its supervisory work by diego rodríguez-pinzón and claudia martin; african human rights law in theory and practice by magnus killander; the political economy and culture of human rights in east asia by michael c davis; islam and the realization of human rights in the muslim world by mashood a baderin; religion, belief and international human rights in the twenty-first century by peter cumper; drip feed: the slow reconstruction of selfdetermination for indigenous peoples by melissa castan; counter-terrorism and human rights by alex conte; and human rights education: a slogan in search of a definition by paula gerber. although this book was the compilation and editing of a research handbook— which provide the sheer number of different human rights issues arising around the globe—some important topic may be missed in this book, especially for relationship between international and national legal system in human rights protection. as well as, this book also not cover the domestic issue in certain country or community. this book is applicable to use in international human rights research but for domestic or local human rights research, there are many special additional topics and guidelines. 305 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. 305-326 issn (print) 2548-1584 issn (online) 2548-1592 general topic document study of unnes legality as legal entity state university ali masyhar, muhammad azil maskur, mulyo widodo ali masyhar, muhammad azil maskur, mulyo widodo universitas negeri semarang  alimasyhar@mail.unnes.ac.id table of contents introduction ………………………………………………….….. 306 literature review ……………………………………………… 308 research method ……………………………………………… 298 result and discussion ………………………………………...… 310 conclusion and suggestion ………….……………………… 324 reference ………….……………………………………………….. 324 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:alimasyhar@mail.unnes.ac.id 306 ali masyhar, et.al. jils 3 (2) november 2018, 305-326 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on august 2018 approved on october 2018 published on november 2018 unit of public service agency (psa work unit). unnes continues to improve itself towards better community service, which is as a legal entity state university. legal entity state university will have a highly positive impact, especially the autonomy of academic and non-academic administration and management. one of the important efforts in order to achieve the status of unnes as a legal entity state university, it is necessary to form a legal document that is the basis of an organization in the form of a statute. in the preparation of the statute, it will not be likely to obtain a suitable statute without the study and analysis outlined in the academic document. based on this background, this research was based on the formulation of the problem on what is the rationality of the academic document that needs to be built, in order to produce a statute of legal entity state university that is suitable for unnes? and what is the formulation/draft of the statute of unnes as a legal entity state university in order to materialize the vision of unnes, which is the conservation vision-based university and international reputation? based on the formulation of the problem it is intended to produce an academic document of the statute of unnes as a legal entity state university and the legality document of unnes as a legal entity state university, especially in the form of a constitutional draft statute. based on the research objectives, the research method used qualitative research using policy approach. the object of research is semarang state university using the method of deep interview and document analysis. keywords: statute, legal entity state university, academic document how to cite (chicago manual style) masyhar, ali, muhammad azil maskur, mulyo widodo. 2018. “document study of unnes legality as legal entity state university”, journal of indonesian legal studies (jils), 3 (2): 305-326. introduction unnes is a state university in indonesia that is inseparable from the national higher education system. based on the act number 12 of 2012 on higher education, non-academic autonomy management for state universities is provided with the choice as a state university for financial management of public service agency (su-fm psa), or as a state university of legal entity. at present unnes is organizing financial management of public service agency (psa). the work procedures management is based on the decree of 307 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils the minister of finance no. 362/kmk.05/2008 dated december 17, 2008 on the establishment of semarang state university at the ministry of national education as a government institution that implements financial management of public service agency (fm-psa). enforcement of financial management of public service agency (fm-psa) is effectively implemented in the 2009 fiscal year. since it was established as a government agency with fm-psa, improvements in various fields such as academics, organizations, work procedures, financial management and other fields in supporting the duties of the university's tridharma. organizational improvement and work procedures in the financial sector become a necessity after the change of status of the regular government agencies‟ working unit into government agencies with fm-psa. this improvement is aimed at realizing the management of universities that adhere to the principles of good university governance management, which are the principles of transparency, accountability, responsibility, independece, and fairness. in line with the principles of good university governance, the regulation of the minister of education and culture of the republic of indonesia number 88 of 2014 concerning changes in state universities into legal entity state university that the principles of good governance in universities consist of (1) principle of accountability, (2) principles of transparency, effectiveness and efficiency, (3) nonprofit principles, (4) principles of adherence to regulations, and (5) principles of periodization, accuracy, and time compliance in the preparation and delivery of academic and non-academic reports. after being established as the work unit of public service agency (psa work unit), unnes continued to improve itself towards better community service, which is as a legal entity state university. institution of state university legal entity brings a highly positive impact, especially the autonomy of academic and non-academic administration and management. based on regulation of the minister of education and cultural no. 88 of 2014 concerning changes in state universities into state universities legal entity, state university of psa work units can apply for legal entity state university by compiling a number of complete and appropriate documents in order to measure the feasibility of their increasing status. article 3 regulation of the minister of education and cultural no. 88 of 2014 on the changes of state universities into legal entity state universities formulated that in order to recognize the feasibility of atate universities into a state university legal entity, the state university must compile several documents, including (1) self-evaluation documents; (2) documents of long-term development plan of the state university legal entity; (3) draft statute document of the state university legal entity; and (4) documents for transition plan of psa to state university legal entities. based on article 3, the preparation of statute of state university legal entity is an important prerequisite for recognition of state university psa into a state university legal entity. moreover, in light of the legal term, the 308 ali masyhar, et.al. jils 3 (2) november 2018, 305-326 http://journal.unnes.ac.id/sju/index.php/jils position of the statute in a university constitutes a basic constitution underlying the operation of all kinds of management of the university. in order to obtain the results of the precise and established preparation of the statute it needs to be preceded by the preparation of an academic document that provides rationality in the preparation of the material substance, which will be regulated in the statute. literature review a. statute the great dictionary of the indonesian language defines the statute as the constitution of an organization (such as university). from this definition, the statute can be defined as a basic regulation of university management, which is used as a basis for drafting regulations and operational procedures in a university. if it is identified with a state organization, statute is such a constitution (the constitution) which serves to provide a foundation in the administration of government. the term of constitution originates from two words, they are cum and statuere (moh. kusnardi and harmaily ibrahim, 1980: 58). cum is defined into „together with.‟ while statuere means making something to stand or establish/set forth. thus, constituo (single form) or constitusiones (plural) is to set something together or things that have been determined. according to dahlan thaib, jazim hamidi and ni'matul huda (dahlan thaib, et al, 1999: 15), the constitution has several meanings, they are (1) a collection of rules that provide restrictions on power to the authorities; (2) a document about the division of tasks and at the same time its officers of a political system; (3) a description of state institutions; (4) a description on human rights issues. based on this understanding, the constitution is a national document containing a state identity, as well as a political and legal document, which contains the formation of a political system and the state legal system. in addition, the constitution can also be referred to as a state birth certificate (a birth certificate). regarding the significance of the word, the meaning and definition of the constitution, it can be used as a basis for preparation and formation of statutes in universities. as an organization, unnes also requires a constitutional basis for operation of the organization. matters regulated in the statutory statute of ptn legal entity has been outlined in regulation of the minister of education and cultural no. 88 of 2014 on the changes of state universities into legal entity state university. article 6 paragraph (2) regulation of the minister of education and cultural no. 88 of 2014 on the changes of state universities into legal entity state universities states that the draft statute of the legal entity state 309 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils universities contains at least, first, element in legal entity state university organization. this element consists of policy makers, academics implementer, supervisory board and quality assurance, academic support or learning resources; and administration implementer. second, the substance of statute of the legal entity state university originating from the state university consists of at least general provisions, identity, and administration of the university‟s tridharma, management system and accountability framework, internal quality assurance system, form and procedures for establishing regulations, funding and wealth, transitional provisions, and closing provisions. in addition, the draft statute of legal entity state university must also be completed with an academic document of the statutes prepared based on the legal entity state universities' long term development plan. b. the legal entity state university legal entity state university, as referred to as legal entity state university as formulated in regulation of the minister of education and cultural no. 88 of 2014 on the changes of state university into state university legal entity are defined as state university established by the government as autonomous legal subjects. thus, it is a state university with a legal entity status, or a university with a legal entity. as for state university, hereinafter is abbreviated as su, are defined as univeristy established and/or organized by the government. university itself is defined as an educational unit that organizes higher education, which is education level subsequent to secondary education which includes diploma programs, undergraduate programs, graduate programs, doctoral programs, and professional programs, as well as specialist programs, organized by higher education based on indonesian culture (governmental regulation no. 4 of 2014 on the administration of higher education and higher education management. martias gelar imam radjo mulano (martias gelar imam radjo mulano, 1982: 181), defined that a legal entity is a group of people or a form of organization, which is recognized as having a legal subject. chidir ali restricts legal entities as legal subjects to include associations of people (organizations), capable of carrying out legal actions (rechtshandeling) in legal relations (rechtsbetrekking), have their own properties, have their executive boards, and have rights and obligations, can sue or be sued before the court (chidir ali, 1991: 21) in law studies, it is distinguished between private and public legal entities. chidir ali distinguished public legal entities and civil or private legal entities based on the following criteria (chidir ali, 1991: 62): (1) in terms of the means of establishment/occurrence, the legal entity is set up with public legal constructs that is established by the authority (state) with other laws or regulations; (2) in terms of the work setting. in carrying out its duties the legal entity generally conduct civil or public legal actions; (3) in terms of its authority, whether the legal entity established by the (state) authority is 310 ali masyhar, et.al. jils 3 (2) november 2018, 305-326 http://journal.unnes.ac.id/sju/index.php/jils authorized to make general binding or non-binding decisions, decree, or regulations. based on the above criteria, the state universities as regulated in the act no. 12 of 2012 on higher education and governmental regulation no. 4 of 2014 on implementation of higher education and higher education management which states that the state university is established by the government, and manage public actions, it can be categorized as a public legal entity. research method based on the focus of the problem, this study used sociological/empirical/ nondoctrinal research methods, although it still does not leave the normative realm. this is because perfect legal research always synergizes various disciplines (nawawi arief, 1995: 6). non-doctrinal/empirical research was used to produce theories about the existence and function of law in society and the ongoing changes in processes of social change (wignyosoebroto, 2002: 90). in relation to the subject matter of this research, empirical/non-doctrinal research was used to obtain/compile academic documents and draft statutes of unnes as legal entity state university to be in accordance with the reality and needs of unnes vision as an international reputable and conservation visionbased university. the applied empirical/non-doctrinal research is included in the category/type of qualitative research, and then the conclusion will be carried out inductively. inductive conclusions rely on synthetic ways of thinking that are based on specific/certain individual knowledge or facts arranged to draw general conclusions (fajar nd: 2010: 113). from the study of existing documents and interviews, conclusions will be drawn and formulated in academic document and draft statutes of unnes as legal entity state university. result and discussion a. preparation of academic document in general, the preparation of the academic document is directed to provide rationality in the formation of the draft government regulation on the statute of state universities of the unnes legal entity. whereas specifically, this academic paper is aimed at (1) provide and present philosophical, sociological and juridical foundations in the statute of the unnes legal entity state university to be consistent with the vision of unnes as a conservation vision-based university and international reputation. (2) present formulation/draft statute of unnes as a legal entity state university in order to crystallize the vision of unnes as a 311 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils conservation vision-based university and international reputation. (3) outline the scope, range and direction of the draft government regulation concerning the statute of the unnes legal entity state university. philosophical foundation is the fundamental foundation of thought. the making of a legal product is inseparable from philosophical noble values, which are three main values in law including justice, expediency and certainty. a regulation must be made in order to materialize justice for the community, benefit the greatest possible community, and create legal certainty. the making of a law must also be based on the indonesian‟s grundnorm, which is pancasila (attamimi in jimly, 2006: 171). pancasila, besides being the basis of the indonesian state, is also the foundation of philosophy of the nation, as all the legal products at the lower level must be based on philosophy of pancasila. the act number 12 of 2011 on establishment of legislation, explains hierarchy of legal products, among others: the 1945 constitution of the republic of indonesia, the decree of the people's consultative assembly of act/government regulation in lieu of the act, government regulations, president regulations, provincial regulation, district/city regional regulation. the regulation concerning education legal entity will be in the form of a ministerial regulation that is ordered by law. it is regulated in connection with those higher referred to in article 8 of act number 12 of 2011, which reads “(1) types of laws and regulations other than those referred to in article 7 paragraph (1) including the regulations stipulated by the people's consultative assembly, the house of representatives, regional representative council, supreme court, constitutional court, audit board, judicial commission, bank indonesia, ministers, agencies, institutions or commissions of the same level established by the law or government on the orders of the act, provincial people's representative council, governor, regency/city regional representative council, regent/mayor, village head or equivalent; (2) laws and regulations as referred to in paragraph (1) are recognized as having their existence and have binding legal force insofar as they are ordered by a higher law or are formed based on authority.” the hierarchy indicates that there is a connection between the rules of the educational legal entity that will be formed with the philosophical foundation of the nation, which is pancasila. pancasila itself as a philosophical foundation of the nation regulates highly noble values. the pancasila precepts are philosophical references to the lower rules. hence, the policy on education remains based on the values of pancasila, which is the value of divinity, humanity, unity, consultative/mutual cooperation, and social justice value. education must prioritize divinity values, meaning that it is in accordance with god's guidance. in the guidance of god, education must be carried out from birth to death. therefore, the state in taking education policy must provide opportunities for all people. education must also prioritize the value of unity, through education there must be cultivating national values, 312 ali masyhar, et.al. jils 3 (2) november 2018, 305-326 http://journal.unnes.ac.id/sju/index.php/jils which is indonesian values. education must have the value of mutual cooperation that this is where the participation of the community must be opened as broadly as possible in managing education. education must have a principle of social justice that all communities are no exception to be entitled to obtain quality education, regardless of wealth or poverty. the embodiment of the values of pancasila in education is further elaborated in the nation's constitution, which is the 1945 constitution. some regulate the philosophical foundation and direction of the nation in the administration and management of education including: 1. paragraph 4 of the 1945 constitution paragraph 4 of the 1945 constitution states that the aim of the indonesian people is to protect the entire indonesian nation and the entire homeland of indonesia, in order to advance social welfare, educate the life of the nation and participate in carrying out world order. education is one of the efforts to educate the life of the nation, thus this is clearly the goal of the indonesian people. 2. article 28 c article 28c is part of the rights of indonesian citizens, this article states that everyone has the right to develop themselves through the fulfillment of their basic needs, the right to obtain education and benefit from science and technology, art and culture, in order to improve the quality of life and for the welfare of the mankind and in paragraph (2) also states that everyone has the right to advance him/herself in fighting for his rights collectively to build his/her community, nation and country. from this article, it provides an understanding that education is the right of every citizen. 3. article 28 e every person is free to embrace religion and worship according to his/her religion, decide on education and teaching, select a job, choose citizenship, pick out a place to live in the territory of the country and leave it behind, and have the right to return. everyone has the right for freedom of belief, expressing thoughts and attitudes, in accordance with his/her conscience. everyone has the right for freedom of association, assembly, and issuing opinions. this article also provides confirmation that education, in addition to the right of every indonesian citizen, is also the freedom to choose from everyone in getting education. there is no compulsion to enter certain educational institutions. 4. article 31 article 31 is the main article used as the basis for the direction of indonesian education. a chapter specifically discussing about culture and education precedes this article. this article reads: (1) every citizen has the right to education; (2) every citizen must take basic education and the government is obliged to finance it; 313 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils (3) the government endeavors and organizes a national education system, which increases faith and piety as well as noble character in the contest of educating the life of the nation, which is regulated by law; (4) the state prioritizes the education budget of at least twenty percent of the state's revenue and expenditure budget as well as from regional income and expenditure budgets in order to meet the needs of national education; (5) the government promotes science and technology by upholding religious values and national unity for advancement of civilization and the welfare of humanity. through this constitutional basis, the implementation of education in indonesia must be carried out by considering the rights of the community and the obligations of the state. the community has the right for education, they are entitled to choose appropriate education, they also have the right to participate in the educational management, the state is obliged to provide space to play an active role in the educational management, and it must provide guarantees to the community to access quality education. crossing with community rights and the obligations of this state, the establishment of a state university of legal entity (su-le) becomes a solution that has a philosophical foundation. through su-legal entity, higher education will become quality, widely open community participation, and available access to those who cannot afford it. sociological foundation is a reason and consideration describing that a policy in regulations is formed to meet the needs of the community in various aspects. this sociological foundation concerns with empirical facts on the development of problems and the needs of society and the state. another consideration related to the sociological foundation is the effort to fulfill the expectations of the people of central java, especially to obtain higher education, which in the capacity of su-psa cannot be fulfilled optimally, but with the approach of su-le, it is expected that it will accommodate the community's desires more broadly. sociologically, unnes lies in the central java community, which is influenced with javanese culture. this javanese culture is inseparable from the history of central java, which since the seventh century many kingdoms have been established, such as the kingdom of buddha kalingga (jepara 674 ad), the hindu kingdom in medang kamulan, central java (732 ad), which built the rorojonggrang temple or prambanan temple under the rule of rakai pikatan from the sanjaya dynasty. then the buddhist mataram kingdom was established, which built temples such as borobudur temple, sewu temple, kalasan temple and other temples during the syailendra dynasty era. in the 16th century, the first islamic empire emerged in demak. since then islam was spread in central java. there were also the kingdom of pajang in jepara and the islamic mataram kingdom, led by the king who 314 ali masyhar, et.al. jils 3 (2) november 2018, 305-326 http://journal.unnes.ac.id/sju/index.php/jils held the title of panembahan senopati. in the mid 16th century, portuguese and spanish came to indonesia in order to locate spices for trade in europe. at the same time, the british and then the dutch also came to indonesia. with its dutch east india company (voc), the dutch oppressed the indonesian people, including the people of central java in both politics and economics (jatengprov.go.id, accessed in june 1, 2018). two large provinces, which are west java and east java, geographically flank central java. it is 5040′ and 8030′ south latitude and between 108030′ and 111030′ east longitude (including karimunjawa island). the farthest distance from west to east is 263 km and from north to south is 226 km (not including karimunjawa island). central java province was administratively divided into 29 regencies and 6 cities. the area of central java is 3.25 million hectares or around 25.04 percent of the total area of java (1.70 percent of the area of indonesia). the area consists of 1.00 million hectares (30.80 percent) of paddy fields and 2.25 million hectares (69.20 percent) of non-paddy fields. the largest area of paddy fields is technically irrigated (38.26 percent), besides those with semitechnical, rainfed irrigated and others. with good irrigation techniques, the potential of paddy fields to cultivate with rice is more than twice by 69.56 percent. then, 34.36 percent of the total area of non-paddy fields in the form of dry land is used for moor land/garden/field/huma (cleared land for cultivation). this percentage is the largest one, compared to the percentage of land use for other non-paddy fields (jatengprov.go.id, accessed in june 1, 2018). central java besides being important in the review of academic documents towards the direction of unnes policy towards su-le as the position of unnes is in central java, also because the people of central java dominate most unnes students. other empirical facts show that unnes is an ex-ikip university that is now a public service agency (fm-psa). until 2018, the number of unnes students is 36,241 spreading across 8 faculties. no faculty/program number of study progam number of students 1. faculty of education 7 5.175 2. faculty of language and art 16 5.959 3. faculty of social science 9 3.269 4. faculty of math and science 11 3.962 5. faculty of engineering 17 4.202 6. faculty of sport science 5 4.238 7. faculty of economics 8 4.507 8. faculty of law 1 1.672 9. graduate program 27 3.257 total 101 36.241 315 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils the large number of students is inseparable from management of unnes, which is excellent and trusted by the community. trust can also be seen from the list of specializations for unnes, which for the third year in a row entered the top 10 most favorite students. institutionally, unnes has obtained institutional a "superior" accreditation. in addition, it has implemented a modern institutional system, and has even received several (1) telkom's tesca smart campus award as a university that maximizes ict functions in the educational process in 2014, (2) it becomes the 3rd green university in indonesia according to ui greenmetrics in 2013 and 2014, and 4th in 2015, (3) it was ranked 20th in the 4icu ranking, (4) it was ranked 17th based on the ranking of universities released by ministry of research, technology and higher education in 2016, (5) unnes received the koni award in 2016, (6) awards from state ministry of youth and sports and leprid as initiators of mass drug testing in 2015, (7) it won the first prize in the ministry of education and culture in 2014, (8) it received a ranking in psa's financial and non-financial management from the ministry of finance, (9) the rector obtained kalpataru from the president of the republic of indonesia as a higher education of environmental conservation pioneer. these achievements prove that unnes is one of the leading universities in indonesia. other empirical facts are good in terms of human resources, as highly adequate lecturers and educational staff support unnes. facilities and infrastructure of unnes both from academic and non-academic equipment, to the support of unnes information technology tools are significantly adequate. this was proven by the acquisition of superior accreditation from the national higher education accreditation board. unnes has also implemented international standard services. certification for this service was obtained from urs, which is quality management system certification (qms) iso 9001: 2008 and iwa 2: 2007. completely, empirical facts as sociological basis for the making of the unnes statute as a bh ptn have been explained in chapter ii. from these socilological conditions, both from unnes region in central java, the dominance of students from central java, and the matured institutional conditions, it needs to be a middle ground, how to create quality higher education with institutional readiness and reach all layers and desires as well as the needs of the people of central java, both from the middle to upper economic class, and the lower middle class, that the capacity improvement policy from fm-psa to legal entity state university (su-le) is greatly necessary. through su-le, unnes will be able to answer the challenges of people who desire quality education, and will reach the accessibility of the lower middle class to be able to continue to higher education. universities can share income, as there are cross subsidies between rich and poor people. through this strategy, all people will be wellserved. quality education and accessibility will reach all community. 316 ali masyhar, et.al. jils 3 (2) november 2018, 305-326 http://journal.unnes.ac.id/sju/index.php/jils juridical foundation is a consideration or reason that describes the established rules to address legal issues or fill legal void by considering existing rules, which will be amended or will be revoked to ensure legal certainty and a sense of community justice. the juridical foundation concerns with legal issues relating to the regulated substance or material that new legislation need to be established. some of the legal issues are, among others, non-harmonious, overlapping regulations, which are the outdated regulations, types of regulations lower than the act that the applicable force is implausible, the rules are inadequate, or the regulations have not yet exist. based on the principle of the hierarchy of laws and regulations as regulated in the act number 12 of 2011 concerning the establishment of the laws and regulation, the lower regulatory material is in fact carrying out the existing provisions in the higher regulations. regarding this principle, the existence of the unnes statute as a su – le is a sub-section of government regulation and ministerial regulation, which is a further elaboration of the higher-level laws and regulations. first, the 1945 constitution of the republic of indonesia. in the 1945 constitution it is mentioned in the opening, article 28 c and e, and article 31. article 28 c reads: article 28 c (1) everyone has the right to develop him/herself through the fulfillment of his/her basic needs, the right for education and benefit from science and technology, art and culture, in order to improve the quality of their lives and for the welfare of humanity. (2) everyone has the right to advance him/herself in fighting for his rights collectively in order to build up his/her community, nation and country. article 28e (1) every person is free to embrace religion and worship according to his/her religion, choose education and teaching, select a job, decide on citizenship, pick a place to live in the territory of the country and leave it behind and have the right to return. (2) everyone has the right to freedom of belief, expressing thoughts and attitudes, in accordance with his/her conscience. (3) everyone has the right to freedom of association, assembly, and issuing opinions. article 31 (1) every citizen has the right to education. (2) every citizen is obliged to attend basic education and the government must reimburse it. (3) the government endeavors and organizes one single national education system, which increases faith and piety as well as noble 317 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils character in the context of educating the life of the nation, which is regulated by the l. (4) the state prioritizes education budget of at least twenty percent of the state's revenue and expenditure budget as well as from the regional budget and revenues to meet the needs for national education. (5) the government promotes science and technology by upholding religious values and national unity for the advancement of civilization and the welfare of humanity second, act number 20 of 2003 on the national education system (state gazette of the republic of indonesia of 2003 number 78, supplement to the state gazette of the republic of indonesia number 4301); all of the acts in the act of national education system are a huge covering for education. the implementation of higher education is specifically regulated in the fourth section on higher education from article 19 to article 25. however, all the rules are general in nature, becoming a covering, for example the regulation on the basis, function and purpose of education. article 3 states that the function of education is that national education functions to develop capabilities and form dignified national character and civilization in order to educate the lives of the nation, aiming to develop the potential students into godly and god-fearing, noble character, healthy, knowledgeable, capable, creative, independent, democratic and responsible citizens. whereas, in article 4 paragraph (6) stated one of the principles of education is that education is organized by empowering all components of society through participation in implementation and quality control of education services. third, the act number 12 of 2012 on higher education. all juridical grounds for administration of higher education are regulated in this law. in the fourth section about higher education organization, article 61 to article 68 regulates the autonomy of higher education management and one of which is a management system with a model of a legal entity (article 65 paragraph (1)). in addition to the three laws and regulations as mentioned above, there are derivative regulations in the implementation in the form of a presidential regulation and government regulations. in addition, there are related regulations in the form of legislation including: (1) act number 14 of 2005 on teachers and lecturers; (2) act number 14 of 2008 on public information openness; (3) presidential regulation number 4 of 2014 on implementation of higher education and higher education management; (4) government regulation number 19 of 2005 on national education standards; (5) government regulation number 48 of 2008 on education funding; (4) government regulation number 37 of 2009 on lecturers; (6) government regulation number 58 of 2013 on forms and mechanisms of legal entity funding; the juridical foundation directly, both implicitly and explicitly mandates that education must have quality and competitiveness as well as 318 ali masyhar, et.al. jils 3 (2) november 2018, 305-326 http://journal.unnes.ac.id/sju/index.php/jils accessibility for disadvantaged people. therefore, universities are given with autonomy to regulate them through mechanism of legal entity state universities. b. preparation of draft statute of unnes as legal entity state university the draft statute to be prepared covers the scope of the following limitations: 1. semarang state university hereinafter referred to as unnes is a university that organizes academic education and vocational education in various clusters of science and/or technology and if eligible, it can hold professional education in accordance with the provisions of the laws and regulations. 2. the unnes statute is the basic management regulation of unnes used as the basis for drafting regulations and operational procedures at unnes. 3. academic education is a higher education undergraduate program and/or postgraduate program directed at the mastery and development of branches, especially in mastering the discipline of science and technology. 4. vocational education is education that prepares students into professionals with high skills/workability. 5. professional education is a higher education following undergraduate program that prepares students for work that requires special skills requirements. 6. academic community is an academic community consisting of lecturers and students. 7. the senate is a senate of unnes that carries out the functions of determining, considering and supervising implementation of academic policies. the materials contained in the government regulation plan concerning the statute of the unnes as a legal entity state university are as follows: 1. general provisions general provisions contain: a. limitations of understanding or definition; b. abbreviations or acronyms used in statutes; c. vision, mission, function and purpose; and d. other general matters that apply to the following articles in the statute, including provisions reflecting the principle, aim, and purpose. 319 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils limitations of understandings or definitions, abbreviations, and acronyms contained in general provisions only for words or terms used in subsequent articles. 2. identity it explains the identity of universities which include: a. name, status, place of residence, and anniversary; b. emblem; c. flag of university/faculty; d. hymns and/or march; e. academic clothing for university leaders, professors, and graduates (hats, togas and necklaces); f. student attributes; and g. other identities as considered necessary. 3. administration of the university’s tridharma administration of the university‟s tridharma contains description on: a. implementation of educational activities, including the organized educational programs (academic, vocational, professional), containing academic calendars, curricula, procedures for organizing lectures, assessment of learning outcomes (form, time, mechanism, and procedures for assessment), academic administration, language of instruction and other matters relating to the administration of education; b. conducting research, including research programs, involvement of lecturers and students, publication of research results, utilization of research results, intellectual property rights (ipr), and other matters related to conducting research; c. organizing community service, including, among others, type and procedures for administration, involvement of lecturers and students, and publication of community service activities; d. academic ethics/code of ethics, containing academic ethics/code of ethics that apply in su-le environment; e. academic freedom and scientific autonomy contain a description of academic freedom and scientific autonomy in universities in accordance with the provisions of the laws and regulations. f. titles and awards contain: 1) requirements for the granting and use of academic, professional, or vocational titles, and awards in the academic field. 2) form, criteria and procedure for rewarding someone or institution that is considered to have very prominent achievements in the non-academic field. 4. management system and accountability framework management system regulates the governance of universities, which contains: a. university organization; 320 ali masyhar, et.al. jils 3 (2) november 2018, 305-326 http://journal.unnes.ac.id/sju/index.php/jils b. human resource management; c. students and alumni; d. budget management; e. management of facilities and infrastructure; f. implementation of cooperation; and g. internal control and supervision system. h. cooperation includes: 1) objectives and principles of cooperation in the context of organizing education, research and community service activities and other cooperation activities in order to develop higher education programs and institutions; 2) the form and mechanism of cooperation with local and foreign universities and other parties; 3) other things that are deemed necessary: understanding, form, mechanism of cooperation in the context of organizing academic and non-academic activities, research, and community service with universities and other domestic and foreign parties. the organizational structure of unnes as a legal entity state university is projected as follows: 1. the board of trustees (mwa), which consists of the minister, governor, chancellor, chairman of the academic senate, chairman of the board of professors, 3 people of the community, 1 person of alumni, 1 person of education staff, 13 people or lecturers, and 1 person of students. the board of trustees has tasks and obligations: a. establish unnes‟ general policy after obtaining consideration from the academic senate and the board of professors; b. supervise unnes‟ financial condition; c. ratify the long term development plan (rpjp), strategic plan (renstra), and rka and evaluate its implementation; d. provide input to the rector for unnes‟ management and implementation of laws and regulations; e. provide assessment to the rector's performance once a year together with the academic senate and the board of professor; f. appoint and dismiss the unnes‟ rector; and g. resolve the unnes‟ problems which other organs cannot solve after going through consideration of coordination meetings between organs. 2. rector the rector's duties and obligations are: a. prepare a strategic plan to be approved by the mwa; b. prepare the rka and its amendments to be approved by the mwa; 321 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils c. manage education, research, dedication/service to the community in accordance with rka; d. appoint and dismiss officials under the rector, faculty chairmans, school chairmans, and chairman of other lower units in accordance with applicable regulations; e. appoint and dismiss employees who are non-civil servants in accordance with the provisions of the laws and regulations; f. conduct good management functions of unnes; g. managing the wealth of unnes and optimally utilizing it for the benefit of unnes; h. fostering and developing good relations with unnes with the environment and society in general; i. follow up on recommendations and decisions of unnes organizational elements according to their functions and roles; j. establish, combine, and/or dissolve faculties, schools, departments and/or study programs as deemed necessary, with the approval of the academic senate; and k. convey the accountability of unnes performance and finance to the mwa. the rector in managing the implementation of the university‟s tridharma led to the academic executing element, the administrative executing elements, and the supporting elements. first, academic executing elements consist of (a) faculty of language and arts, (b) faculty of mathematics and natural sciences, (c) faculty of education and psychology, (d) faculty of sports science, (e) faculty of engineering; (f) faculty of social and political sciences, (g) faculty of law, (h) faculty of economics and business, (i) faculty of public and medical health, (j) faculty of tourism and hospitality, (k) vocational school, (l) graduate school. second, administrative executing elements consist of (a) university secretariat, education and teaching directorate, (b) research directorate, (c) community service directorate, (d) student affairs directorate, (e) planning directorate, (f) finance directorate, (g) human resources directorate, (h) asset directorate, (i) partnerships and alumni directorate, (j) business and incubation directorate, (k) information systems and resources directorate. third, the supporting elements consist of: (a) libraries, (b) museums and archives, (c) hospitals, (d) primary service clinics, (e) cultural centers, (f) innovation centers, (g) field laboratories, (h) integrated laboratory, (i) language center, (j) dormitory; (k) publishing agency, (l) campus security and safety, (m) procurement and logistics; and, (n) other required supporting elements. 3. academic senate (as) as have duties and obligations: 322 ali masyhar, et.al. jils 3 (2) november 2018, 305-326 http://journal.unnes.ac.id/sju/index.php/jils a. establish academic norms and provisions and supervise their application; b. provide consideration/input to the rector in preparing and/or modifying the rpjp, renstra, or rka in the academic; c. giving consideration to the rector related to the opening, merging, or closing of faculties, schools, departments, and study programs; d. supervise policies and implementation of the tridharma of higher education in unnes as established in the strategic plan; e. supervise policies and implementation of educational quality assurance; and f. giving consideration to the mwa regarding the rector's performance in the academic. academic senate consists of: a. rector b. vice chancellor c. dean/director of postgraduate school/chairman d. deputy professor e. deputy lecturer of 2 people f. chairperson of the institute g. bpm 4. board of professors the board of professor consists of 39 people who are representatives of each faculty of 3 people. the duties of the board of professor are: a. fostering academic life as well as moral and ethical integrity of academics; b. establish and ensure implementation of the code of ethics of the academic community; c. provide consideration and direction in the development of knowledge in unnes both in certain disciplines and leading towards multi-disciplinary and interdisciplinary development; d. ensure the application of regulations on implementation of academic freedom, freedom of academic pulpit, and scientific autonomy; e. conduct an assessment and give approval to the functional position of the lector's head and professor to be followed up by the rector; f. administer inspections and make recommendations for sanctions against violations of norms and ethics by academics to be determined and implemented by the rector; g. propose granting or revocation of honors and academic awards to be determined by the rector; h. coordinate and consult with the faculty‟s board of professor; 323 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils i. monitoring, developing, and ensuring scientific autonomy at unnes; and j. provide consideration/input to the rector in the preparation and/or amendment of the rpjp, renstra, or rka in the academic. 5. internal quality assurance system assurance system contains a description of: a. the applicable internal quality assurance system and is applied to universities in accordance with the provisions of the laws and regulations; b. procedures/mechanism for implementing internal quality assurance; c. reporting on the results of the implementation of internal quality assurance; d. accreditation containing a description of evaluation and accreditation of academic and administrative implementation within the context of the university quality assurance system; and e. other matters considered necessary. 6. form and procedure for establishing regulations the form and procedure for establishing regulations contains materials regarding: a. form of regulation to be applied in universities; c. order of regulation; and d. procedures/mechanisms for drafting regulations in universities. 7. funding and wealth regarding funding and wealth, it regulates: a. funding sources for administration of higher education by legal entity state university, which is revenue of legal entity state university and is managed autonomously, including the community, educational costs, management of endowments and legal entity state university efforts, tridharma cooperation, management of the state assets provided by the government and regional government for the benefit of developing higher education, and/or other legitimate sources. b. funding mechanism; c. wealth of legal entity state university, including the initial wealth value and wealth reporting in accordance with the provisions of the laws and regulations; and d. other matters considered necessary. 8. transitional provisions it contains provisions regarding transitional period for implementation of certain provisions in this ministerial regulation. 9. closing provision 324 ali masyhar, et.al. jils 3 (2) november 2018, 305-326 http://journal.unnes.ac.id/sju/index.php/jils it contains provisions concerning enactment of regulations on new statutes and revocation of regulations regarding old statutes. conclusion and suggestion a. conclusion from the results of the accomplished research, the following conclusions can be drawn: 1. preparation of academic document of the unnes statutes as legal entity state university is based on 3 main bases, they are philosophical, sociological, and juridical basis. these three main bases in the future become the support for the need to formulate the unnes statute as a legal entity state university. 2. draft of unnes statute as legal entity state university covers 9 content materials, they are general provisions, identity, implementation of universities‟ tridharma, management system and accountability framework, internal quality assurance system, forms and procedures for determination of regulations, funding and wealth, transitional provisions, and closing provisions. b. suggestion the suggestions that can be submitted are: 1. in preparing the statute, special studies are required in sufficient time that the statute can be obtained in accordance with the vision, mission and objectives of unnes. 2. in preparing the statute, it requires an active involvement of the members of unnes and stakeholders. reference ali, chidir. badan hukum. bandung: alumni, 1991. bungin, burhan. metodologi penelitian sosial: format-format kuantitatif dan kualitatif. surabaya: airlangga university press, 2001. faisal, sanapiah. format-format penelitian sosial, jakarta: rajagrafindo persada, 2005. fajar nd, mukti and yulianto ahmad. dualisme penelitian hukum normatif dan empiris, yogyakarta: pustaka pelajar, 2010. kusnardi, moh, and harmaily ibrahim. pengantar hukum tata negara indonesia, jakarta: pusat studi hukum tata negara fhui, 1980. mulano, martias gelar imam radjo. pembahasan hukum penjelasan istilahistilah hukum belanda – indonesia. jakarta: ghalia indonesia, 1982 325 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils nawawi arief, barda. “penelitian hukum normatif (suatu upaya reorientasi pemahaman)”, paper, presented at seminar on legal research methodology, faculty of law universitas jenderal soedirman (unsoed) purwokerto, 11-15 september 1995. thaib, dahlan, at.al. teori hukum dan konstitusi. jakarta: raja grafindo persada, 1999. 326 ali masyhar, et.al. jils 3 (2) november 2018, 305-326 http://journal.unnes.ac.id/sju/index.php/jils quote “study without desire spoils the memory, and it retains nothing that it takes in” ― leonardo da vinci source: https://www.goodreads.com/quotes/tag/university 73 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. 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, 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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.2009.9.1.52 109 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 47 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. 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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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 143 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. 143-160 issn (print) 2548-1584 issn (online) 2548-1592 promoting the right to education through a card: a paradox of indonesia’s educational policy?1 muhammad bahrul ulum, dina tsalist wildana muhammad bahrul ulum faculty of law, universitas jember, indonesia jl. kalimantan no.76, krajan timur, sumbersari, kabupaten jember, jawa timur 68121  muhd.bahrul@unej.ac.id dina tsalist wildana centre for human rights, multiculturalism, and migration universitas jember, indonesia table of contents introduction ………………………………………………….…... 144 decentralization & cash transfers policy ………... 145 the right to education and educational policies………………………………………………………………… 150 evaluating educational policies in indonesia …. 153 conclusion ……………………………………………………….… 156 references ……………………………………………………….…. 157 doi 10.15294/jils.v4i01.26973 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. 1 we are grateful to al khanif for his valuable comments on earlier versions of this paper. my thanks also to eleanor c. jones for her kind assistance to proofread and discuss on the final version of the manuscript. jils (journal of indonesian legal studies) mailto:muhd.bahrul@unej.ac.id 144 http://journal.unnes.ac.id/sju/index.php/jils m. b. ulum & dina t. wildana jils 4 (1) may 2019, 143-160 article info abstract submitted on november 2018 approved on february 2019 published on may 2019 in 2015, the indonesian government unveiled the smart indonesia program, or program indonesia pintar (pip). the program consisted of educational subsidies through cash transfers exclusively granted to students aged from 6 to 21 years old from poor families. this paper examines the role of the pip subsidy pertaining to the fulfilment of the right to education. as a consequence, it resulted in a competing account between cash transfers and the minimum standard of government duties to fulfil the need for adequate educational support. there is a paradox in the government’s educational policy on the fulfilment 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. the research conducted concludes by suggesting the government to evaluate the current policies by considering budget priorities and the efficiency of providing inclusive education. keywords: cash transfers policy, the right to education, educational policies how to cite (chicago manual style) ulum, muhammad bahrul & wildana, dina tsalist. ―promoting the right to education through a card: a paradox of indonesia‘s educational policy?‖, jils (journal of indonesian legal studies), 4 (1), 2019: 143-160. introduction as one of world‘s most populous countries, indonesia relentlessly faces critical challenges in efforts to providing the right to education. the data from the ministry of education and culture 2012 showed children could not access primary schools up to 2.4% (oecd 2016), in spite of the high drop-out rate at each school level (oecd/asian development bank 2015). a series of policies have been introduced to cater to the need for accessible education and 145 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 improved educational quality. the latest policy is the smart indonesia program, or program indonesia pintar (pip), and it provides financial aid through cash transfers granted to students aged from 6 to 21 years old from poor families. the policy, however, has been questioned regarding the extent to which it enables the promotion of the rights to education as part of human rights. this paper reveals that the fulfillment of the right to education is an arduous task for the government of indonesia, specifically for how it is promoted. the discussion will specifically examine the role of the pip policy pertaining to the fulfillment of the right to education, and its further implications, by providing a competing account of cash transfers regarding the minimum standard of government duties to fulfill adequate educational support. this paper is not aimed to provide a comprehensive account of cash transfer programs or educational policies in decentralized indonesia. rather, this paper discusses the relevance of the cash transfer program to the promotion of the right to education. the background reflects how this paper is organized. the first part of this paper will discuss the relationship between the pip policy and the access to education, including the obligation of government to fulfill the right to education. in the second part, this paper will analyze the responsibility to protect and fulfill the right to education in a series of policy and global commitments for providing education as human rights. the third part will examine a series of policies and its challenges at providing free and improved education that focuses on teacher performance to ensure the right to education can be enjoyed by all citizens. decentralization & cash transfers policy since the early 2000s, there has been a dramatic change in educational policies (kristiansen & pratikno 2006). while the government decentralized the educational administration of primary and secondary schools (kristiansen & pratikno 2006) from central to regional authorities, 2 there remains at least two major challenges, inter alia: providing inclusive education and providing improved educational quality (bangay 2005). indeed, government decentralization grants regional authorities larger opportunities to solve challenges; however, the formulation of policies to promote the right to education is another problem arising in contemporary indonesia when 2 in the third phase of regional authorities‘ decentralization, it introduces concurrent affairs, viz. compulsory concurrent powers and optional concurrent powers. the decentralization of educational administration is categorized as part of compulsory concurrent powers divided into three levels which is essentially: (a) national authority to regulate standardization and accreditation; (b) provincial authority to manage secondary school; and (c) district and municipal levels to manage primary and nursery schools. 146 http://journal.unnes.ac.id/sju/index.php/jils m. b. ulum & dina t. wildana jils 4 (1) may 2019, 143-160 considering diverse problems in each region. therefore, after almost two decades of a decentralization agenda, there is still a high number of students that cannot access education at formal schools (oecd/asian development bank 2015). 3 indeed, providing access to education is a key component to solving a number of barriers to an inclusive education system. it is a key component specifically because it deals with compulsory education provided by the government. in 2013, the government unveiled universal secondary education which prioritizes the accessibility of education (ministerial regulation of education and culture no. 80 of 2013 on universal secondary education). 4 this action implies that the government acknowledges that education should be universally attainable. this initiative does not only deal with the obligation to provide but also shaping of the country‘s future development with competitive human resources in the globalized world. nevertheless, poverty is one of the main reasons for the high drop-out rate of students. this demonstrates how a family‘s economic condition significantly influences a child‘s participation in school (oecd/asian development bank 2015). the united nations international children‘s fund (unicef) finds that rich families are greatly linked with children to have access to school in indonesia (oecd/asian development bank 2015). this finding affirms that richer families will have more opportunities for their children to access higher education. in other words, the right to education still cannot be inclusively accessed due to the economic gap between poor and rich families. accordingly, children from poor families are a vulnerable group that needs a special concern from the government. with the following disparity, in 2005, the indonesian government introduced the school operational assistance grant or bantuan operasional sekolah (bos) to respond to the rising of school‘s tuition fee charged by schools to students 5 (kharisma 2013). the bos scheme opened opportunities 3 in 2012, it counted the drop-out rate of primary school with 1.09% and the percentage increased to 4.6% of primary school discontinuing junior secondary school and up to 8% of drop-out rate in this level. it also provided children who cannot access education through formal school with approximately 2.4%. 4 universal secondary education is materialized in the form of providing education as much as possible to citizens to access formal educational levels, viz. (a) junior secondary school or sekolah menengah pertama (smp)/islamic junior secondary school or madrasah tsanawiyah (mts)/equivalent levels; and (b) senior secondary school or sekolah menengah atas (sma)/islamic senior secondary school or madrasah aliyah (ma)/ vocational secondary school or sekolah menengah kejuruan (smk)/equivalent levels. the primary aim of universal secondary education is to provide every citizen services on the basis of equal opportunity to access secondary school. 5 the bos scheme is the improvement of social safety scheme or jaring pengaman sosial (jps) in educational sectors as previously applied in 1998-2003 and the following policy on the effect of the reduction of gasoline subsidy in 2003-2005. in the bos scheme, schools will be granted financial aids to cater schools‘ operational costs based on the number of students. it aims to compensate schools so that schools will no longer charge a fee to students (primarily students from poor families). 147 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 for more accessible education with a lower tuition fee. to some extent, schools applied for the free, monthly tuition fee because the schools‘ basic expenditure has been provided by the government (sugiono et.al 2015). the program gradually contributed to the reduction in the charge of tuition fees which positively impacted the rising of student participation in accessing a formal education. a decade after the bos program, the government launched the smart indonesia program or program indonesia pintar (pip). it compensates students from poor families through a card, a legal document required in the pip subsidy. as the distribution of cash transfers is administered through an electronic form, the program improves upon the poor financial aids or bantuan siswa miskin (bsm) 6 (ministerial regulation of education and culture no. 12 of 2015 on smart indonesia program) which was launched in 2008 (oecd/asian development bank 2015). 7 the main aim of the program is to apply universal junior secondary school and senior secondary school so that students from poor families can successfully complete 12 years of education (art. 2 ministerial regulation of education and culture no. 12 of 2015). thus, it is important to discuss further the relationship between the right to education and the pip policy. 1. the pip policy and the right to education: searching for their relevance in president joko widodo‘s administration, bsm was replaced by the indonesian smart card program or kartu indonesia pintar (kip). this administrative requirement is one of the few differences with the former cash transfer program. in addition, the nomenclature of bsm was strongly characterized as cash transfers prioritized to poor students, while the pip subsidy has been identified as a program given to smart students from poor families. administrative rules define the pip subsidy as a cash transfer program granted to children from the age of 6 to 21 from families that hold a welfare family card or kartu keluarga sejahtera (kks); therefore, the grant should be given only to poor families. the goal of the pip policy is for all students to study in formal and non-formal institutions. formal institutions comprise of students in primary schools, junior high schools, and senior high schools. while non-formal education includes islamic boarding schools, course institutions, and training institutions. 6 once students are granted financial aids, they are required to hold smart indonesia card or kartu indonesia pintar (kip) which is granted to children from families holding social protection card or kartu perlindungan sosial (kps) / welfare family card or kartu keluarga sejahtera (kks). 7 bsm was perceived as a program to provide equity among indonesian students in which it was to ensure all children from vulnerable economy received cash transfers to promote school participation. 148 http://journal.unnes.ac.id/sju/index.php/jils m. b. ulum & dina t. wildana jils 4 (1) may 2019, 143-160 to adhere to the pip policy, it could be an alternative to diverse government formulas to alleviate the educational gap, including child participation and the right to education. through the pip policy, the cash transfers are granted on a six months basis. students in primary school, junior high school, and senior high school are granted idr 225.000,00, 375.000,00, and 500.000,00 respectively. 8 in practice, even though the funds granted to students are primarily aimed to support school expenses, 9 students can arbitrarily use it once the money has been released from banks. through the pip policy, the government strives to reduce the number of drop-out students due to economic disparity. this policy is aimed to contribute to the improvement of access to education which will widen learning opportunities for students from poor families. this policy affirms s a non-discriminatory policy in which the program is aimed at providing larger access to education, regardless if the student is boy or girl, rich or poor, and living in village or city. therefore, this article assumes that the government through the pip policy has the responsibility to protect and provide human rights through positive action as guaranteed in the 1945 indonesian constitution since it is expected to provide inclusive education. on one hand, such program can be included as a means to bring equal protection under the law by asserting equality before the law needs positive action 10 (tussman & tenbroek 1948). this policy confirms the government to actively reduce gaps by providing special treatment for the most vulnerable persons. therefore, this reflects that the effort to provide cash transfers is intended to realize equality of rights and treatment in response to inequality 11 (sartika, safitri, & edison 2017). in the end, with such cash transfers, students have the potential to access basic education despite economic challenges in their families. on the other hand, while the pip policy has contributed to school participation (ahmad 2018), this program encounters problems regarding the spread of information and the distribution of the subsidies. in tanjungpinang, despite the absence of reliable data verification (sartika, safitri & edison 2017), there is no adequate information on the program. so, many families do not know how to access information and gain benefits from this program (sartika, safitri & edison 2017). as the program is not well informed, there are many families that do not use the subsidies properly (saraswati nd). in jember, there were many students from rich families who 8 ―program indonesia pintar melalui kartu indonesia pintar (kip) klaster i tanya jawab : tim nasional percepatan penanggulangan kemiskinan tnp2k,‖ accessed february 19, 2017, http://www.tnp2k.go.id/id/tanya-jawab/klaster-i/programindonesia-pintar-melalui-kartu-indonesia-pintar-kip/. 9 ―program indonesia pintar melalui kartu indonesia pintar (kip) klaster i tanya jawab : tim nasional percepatan penanggulangan kemiskinan tnp2k.‖ 10 equal protection of the laws is aimed at the state responsibility to actively provide the protection to all citizens to enjoy human rights so that it enables to objectify equality to all citizens. 11 positive action can be interpreted as an action to identify and overcome discriminatory practices, especially for those who do not benefit. 149 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 received this cash assistance. the information counted that 1,057 out of the 1,067 students who were in grades seven, eight, and nine of government junior high school jember 1 (smp 1 jember) received pip assistance (solichah 2017). these facts confirm that such problems are serious as this policy was substantively aimed to provide positive action in human rights. cash subsidies are seen as protection for citizens who need special treatment to access the right to education. unfortunately, in practice, benefits are going to richer families. similar problems often occur, particularly when government programs, in the form of financial assistance, have been followed by further challenges due to poor data collection and verification, including worse aid distribution (perdana 2015). in this context, the pip is counterproductive and does not meet what was expected: to anticipate and answer high rate of dropouts among students. these problems, therefore, can be concluded to be a result of the negligence of the government in its efforts to protect human rights. 2. quo vadis: educational subsidies or the right to education? in the context of human rights, there are two consequences for providing educational subsidies while attempting to fulfill the right to education. providing educational subsidies may affect the fulfillment of the right to education, but the right to education specifically emphasizes the obligation of the state to provide adequate education. in other words, the state is obliged to ensure that every student can access their rights so that they can go to school and receive proper knowledge at school. this is different from providing subsidies which play a role in supporting the level of school participation through cash transfers, not the accessibility and availability of education to be enjoyed all citizens. indeed, it takes how the government considers the proper formula on the right to education. it is essential to take experiences from other developing countries on how they formulated duties on the right to education. as indonesia is a thirdworld country, there is the assumption that the country has relatively similar problems with other developing countries, such as improper planning and budget distribution. to this extent, most programs unveiled for poverty alleviation, including in the field of education, are in the form of cash. in mexico, cash assistance became a popular policy model. cash was granted to families who met certain requirements to ensure school-age children could attend school properly. in the end, this program was reevaluated because of the ineffectiveness of its implementation. however, the evaluation often does not consider what matters make success in improving children's quality and family welfare (de brauw & hoddinott 2011). mexico's experience confirms that the cash assistance program, in practice, does not have positive impacts to solve the problems in the country. in other words, cash assistance is not an appropriate tool to answer problems 150 http://journal.unnes.ac.id/sju/index.php/jils m. b. ulum & dina t. wildana jils 4 (1) may 2019, 143-160 of poverty and vulnerable citizens as this model is faced with difficult challenges to its effective implementation. in general, african countries also often adopt the cash assistance policy model as a way of increasing growth (garcia, g. moore, & m. t. moore 2012). this model is also applied in order to meet the pressure to reduce poverty and fulfill human rights, but it is still not an effective drug to solve problems in africa (garcia, g. moore, & m. t. moore 2012). ecuador's experience is another example. the country also faced difficult challenges in implementing a cash assistance program. ecuador expected that its policy model would provide positive achievement for the development of children. however, in practice, those who are from poor families often wasted the cash they received for their other needs (paxson & schady 2010). the use of assistance in the form of cash in indonesia remains at a high level of risk. these risks include the accuracy of the use of cash assistance for the benefit of supporting access to education. in other words, there is the concern of whether cash assistance would be used for the intended need or for other purposes that are counterproductive in the mission of accessing education. therefore, from such facts, it is important to suggest that the government re-evaluates the pip policy, including improving the data collection, verification, and its distribution into other than cash transfers rather than just the mode of distribution (liputan6.com 2017). the right to education and educational policies subsidy programs in education will become more intense to debate as it is discussed in the lens of human rights. the right to education is guaranteed in the constitution and international covenants ratified by the government of indonesia. the right to education covers what matters need to be fulfilled by the government in realizing the protection and fulfillment of human rights to education to its citizens. as in article 31 of the 1945 constitution, the right to education is granted for citizens and they are obligated to attend basic education, whose finance is subsidized by the government. further provisions are regulated in the law on the national education system (national education system act). article 34 confirms that the government, both at the central and regional levels, guarantees the implementation of minimum compulsory education for basic education without fees. in addition, article 5 states that the right to education includes the same rights to obtain quality education. it is also stated that there is a special protection of rights for citizens who have physical, emotional, mental, intellectual, and social disorders. in this context, the right to education includes special service education for citizens who live in remote or 151 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 underdeveloped areas, including indigenous peoples. special education is also given to citizens who have special talents and intelligence. all rights granted are in the context of providing citizens with the opportunity to improve education so that citizens are life-long learners. in referring to international instruments, the provision of the right to education also includes free, basic education which requires the government to fulfill and provide. this right is mentioned in article 26 (1) of the universal declaration of human rights 1948, article 13 paragraph (2) (a) of the international covenant on economic, social and cultural rights 1966, article 28 (1) (a) of the covenant on the rights of the child 1989 or article 4 (a) of the covenant on discrimination in the education 1960. such laws justify the right to education as an important role in the national agenda, particularly, when the state is obliged to provide free, basic education. this paper considers that indonesia will enjoy demographic dividend by 2030 but they depend on how the government formulates the right to education so that education is accessible for the young generation 12 (mcdonald 2014). unicef introduces a conceptual framework for the approach to the right to education comprising of three interrelated dimensions. these three dimensions include the right of access to education, the right to quality education, and the right to respect for the learning environment. the right of access to education is based on equal opportunities without any discrimination; it is an inclusive approach to education for children. the right to quality education enables children to develop their potential and use various opportunities to develop their skills. to achieve this goal, education is required to be child-oriented with relevant curriculum and support by appropriate resources and supervision. the right to respect in the learning environment is entitled to every child. to achieve this goal, education must be consistent with human rights, including equal respect for each child, various opportunities for participation, free from all forms of violence, respect for language, culture and religion (unicef and unesco 2007). therefore, this asserts that the scope of access to education includes not only equal opportunities without any discrimination as part of inclusive education for all children but also excellent education that supports every child to enjoy learning environment. while access to education should meet the quality of education, this paper considers article 5 of the national education system law that is concerned at providing quality education. this law states providing access to education should be followed by the improvement of quality so that there is an improvement in the quality of human resources. such article affirms the importance to improve the quality of education so that it brings positive impacts to the quality of learning and skills-based student achievement. the 12 it is estimated that during 2010-2035 there will be increasing population of indonesia consisting of 30 million in java, 18 million in sumatra, 4 million in bali and nusa tenggara, 6.5 million in kalimantan, 5 million in sulawesi and 4.5 million in maluku and papua. 152 http://journal.unnes.ac.id/sju/index.php/jils m. b. ulum & dina t. wildana jils 4 (1) may 2019, 143-160 government, however, needs to formulate the budget in a way that supports access to education, followed by an improvement in the quality of education, as it is widely known that better education will influence a better rate of economic growth. subsequently, the improvement of the quality of education justifies at improving the welfare of citizens. eric hanushek, an economist on the economics of education and public policy, argues that without the improvement in the quality of school education, developing countries will face difficulties improving their longterm, economic sustainability (hanushek 2013). the role of quality schools at this stage influences the increase in resource capital, so the better education supports individual income and economic growth. for example, when singapore gained the autonomous status from the british government, it was poor with the majority of its population having high illiteracy and no skills (oecd 2017). at the same time, policy focused on expanding basic education as quickly as possible and recruiting large numbers of teachers to achieve a universal basic education. this was achieved in 1965 (oecd 2017). quality-based policies began in 1979 with emphasis on skills in order to support domestic economic growth (oecd 2017). in fact, indonesia cannot eradicate poverty through education policy as quick as what singapore has practiced. indeed, indonesia is complex consisting of culturally, religiously, and linguistically diverse population with higher economic gap compared to singapore. however, indonesia revised educational policies by providing a larger amount of national budget. it is written in article 31 paragraph (4) of the 1945 constitution in which the state prioritizes a minimum education budget of 20% from the state budget to support the implementation of the national education system. this improvement then juxtaposes indonesia and singapore as countries that have high priority in education, reserving a budget portion of 20% of the total state budget (tan, liu & low 2017). after more than a decade, however, indonesia faces considerable challenges in regards to the expense of providing better education. as the unitary state, education in indonesia is a nationally-driven agenda, and provincial and local governments are limited in exercising powers. one of the fundamental problems is that indonesia cannot resolve complex problems nationally. such problems are, nonetheless, providing decent schools, free basic education, and unskilled teachers which result in lower quality of education. three surveys measuring worldwide educational performance, such as the trends in international mathematics and science study (timss), progress in international reading literacy study (pirls) and the program for international student assessment (pisa), show that education in indonesia has not improved significantly from the previous rankings (manning & sumarto 2011; adb & oecd 2015). the latest pisa results published in 2016 ranked the average score of indonesian students in reading, mathematics, and science as number 62 of the 70 countries in the world participating in this survey (the jakarta post 2017). in contrast, in the same 153 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 survey, singapore was ranked first in the world. therefore, it is evident that the success derives from their reform educational policy and because the country put education as a driving aspect of its national economic development (oecd 2015). therefore, when education is considered important to improve the quality of human resources and the standard of living, the government has obligations not only to provide access to basic education but also use funding efficiently. evaluating educational policies in indonesia this section outlines the evaluation of national education policies at providing the right to education. this section specifically consists of evaluations relating to free education as mandated by the law and international instruments. in addition, teacher performances and wellbeing are evaluated against indonesia‘s struggles over better education. 1. free education issues due to the aforementioned facts, it is important to criticize indonesia‘s educational system, particularly on the availability of inclusive education. in one hand, the government needs to improve accessible education followed by the improved quality of education. the limited budget, however, can be no longer be a mere issue to justify this problem. rather, the government of indonesia needs to manage the national budget efficiently to reduce economic gaps among students and foster national investment in education. in this regard, the asian development bank classifies several key factors on managing budgets and access to education, inter alia: readjusting student and teacher ratios, reducing teachers‘ absence in schools, and rationalizing nonpermanent teachers against good standards and high performance in teaching (adb & oecd 2015). these three efforts are predicted to bring positive impacts to budget efficiency as a means to solve existing budget problems. if those efforts are successfully done, they would ease the provision of free education as indonesia's commitment in the full realization to the national education system and the international covenant on economic, social, and cultural rights (icescr) ratified by indonesia in 2005. therefore, as the right to education is regarded part of derogable rights in which the enjoyment of such right can be strictly limited in accordance government‘s budget the ratification confirmed that indonesia is ready to fulfill the responsibilities specified in the covenant. in the covenant, one of these commitments needs to be realized by providing free basic education. 154 http://journal.unnes.ac.id/sju/index.php/jils m. b. ulum & dina t. wildana jils 4 (1) may 2019, 143-160 free basic education has a problem in its application. the responsibility of the government as article 31 paragraph (2) of the 1945 constitution, which mandates the government to regulate the administration of education to realize compulsory education, does not necessarily run properly. the budgeting process for fulfilling free education is often an obstacle due to problems in implementation. one justifiable obstacle is that the amount of budget set by the government is too small. 13 in addition, efforts for free education resulted in different obstacles for each region. the diverse amount of income in each region challenges efforts to fulfill free education for policymakers. 14 changes in administrative powers in education also bring impacts in the implementation. after the third regional government act 2014 was promulgated, there are new provisions to involve regency and provincial governments. according to such a new act, education at the elementary and junior high school levels is taken over by the regency government, while the high school level is subjected to the provincial government. insofar this change, however, has an adverse impact on the budgeting process that impedes the implementation of free education. 15 2. teacher’s quality and well-being education is strongly intertwined with teacher-student relations. both teacher and student have major roles in the efforts to educate national life. while students become the focus of government‘s policy aimed to be able to access the right to education, teachers play a vital role in this aim in producing quality education. in addition to educational fees, the role of schools for providing quality teachers needs to be in the government‘s prioritized agenda (komnas ham 2009). ministry of national education acknowledges that the teaching profession in indonesia bears big challenges in transforming teacher‘s competence to meet national standards (jalal et al 2009). the organization for economic co-operation and development (oecd) also aggregately notes that teachers in indonesia still have a low performance to bolster better education in indonesia, especially teachers at the elementary level. the 13 ―anggaran pendidikan gratis di jember tak sesuai kalkulasi awal beritajatim news,‖ accessed february 19, 2017, http://beritajatim.com/politik_pemerintahan/280688/anggaran_pendidikan_gratis_di_j ember_tak_sesuai_kalkulasi_awal.html. 14 ―akar kontroversi pendidikan gratis di jember beritajatim news,‖ accessed february 19, 2017, http://beritajatim.com/pendidikan_kesehatan/272130/akar_kontroversi_pendidikan_gr atis_di_jember.html. 15 ―dprd: pendidikan gratis jember seharga 1 pak rokok beritajatim news,‖ accessed february 19, 2017, http://beritajatim.com/politik_pemerintahan/280655/dprd:_pendidikan_gratis_jember_ seharga_1_pak_rokok.html. 155 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 oecd asserts that education in indonesia considers teachers as one of the major problems for providing the right to education. when steps towards improvement have been taken by the indonesian government there was a high number of teachers‘ absences in school; in 20132014, there was an estimated number of around 10% (oecd 2006). these absences affect the effective pedagogical process at schools. in fact, schools aggregately only provide students to learn less than minimum school hours resulting in particularly low ability in mathematics (oecd 2006). teachers‘ absences at school, however, increases in rural and remote areas with all its limited infrastructure (oecd 2006). this results in an increased level of students‘ absences from school (oecd 2006). the information also notes that teachers‘ absence to school increased by 26% due to schools‘ administrative duties, such as attending meetings or training (oecd 2006). in addition, such absenteeism also significantly led to additional work for teachers to cover financial shortages as schools do not provide enough salary for teachers (oecd 2006). the government responded to these problems by introducing teacher certification; however, this leaves new problems because the program lacks effectiveness. the program has been operational since 2006 with the teacher professional program and training or program latihan dan profesi guru (plpg) (ramli & jalinus 2013). the plpg sets requirements on the minimum qualifications for the teacher's teaching process. there are a series of training in the field of pedagogy and exams to be passed before teachers are certified. however, the implementation tends to be unable to transform the participants into professional teachers. while this certification program is recognized to improve the quality of teacher welfare, the world bank‘s research reveals that it resulted in the better teachers‘ salary but not followed by the improved teachers‘ performance at schools (chang et al 2013). in other words, there is no significant difference between certified teachers and uncertified teachers in terms of their professional competence in the aspects of knowledge and teaching skills towards student achievement (chang et al 2013). the above statement can be justified as the reason to argue that the government has carried out inappropriate policies so that the budget expenditure does not meet a significant impact to improve the quality of both teachers and students. the world bank highlights that such actions are the result of the government‘s focus on structure rather than cultural changes in education (chang et al 2013). a structural approach that is not followed by a cultural aspect to transform performance in education results in the failure to achieve an improvement in the quality of education in indonesia. therefore, the right to education is still under big projects for how it is negotiated with better government‘s policy. 156 http://journal.unnes.ac.id/sju/index.php/jils m. b. ulum & dina t. wildana jils 4 (1) may 2019, 143-160 conclusion educational policy has become increasingly complicated in indonesia, especially when it is articulated, debated, and negotiated with the right to education. a series of policies were created by the indonesian government in order to increase school participation and improve the quality of education in indonesia. in its implementation, however, these efforts often were challenged to the extent to which the government formulated a series of weak policies that resulted in human rights debates. while the series of pip policies were unveiled, for instance, inaccurate data collection suffered the unfair distribution of aid to students from poor families, the distribution of cash assistance, in some cases, was wrongly targeted so that it essentially contradicted with the aim of the program. as the policy is linked to human rights, its implementation confirms that the government has been negligent in a series of policies in fulfilling human rights responsibilities. indeed, a cash assistance program was aimed by the government to raise school participation; however, it tends to lack effectiveness when the budget allocation is not distributed to support the right to education, including accessible education and free education as both are officially acknowledged by the government as universal education. it is necessary to review the effectiveness of pip policies as an effort to fulfill the right to education for citizens. the evaluation includes the use of the budget to be more relevant to the fulfillment of human rights. in the midst of budget constraints, the clash of policy formulations between cash assistance and free basic education commitments are on the problem of formulation, but indonesia is bound by icescr so that free education should be the priority. on the other hand, by referring to article 5 of the national education system law, the commitment to provide education, which includes quality aspects, should be considered by the government. this is especially because indonesia is often ranked by timss, pirls, and pisa to have lower performances in education compared to that of other countries in southeast asia. in responding to this, the government needs to reconsider the aspect of the fulfillment in the right to education. free education should be an impetus to fix the budget expenditure rather than use the budget inefficiently. a series of policies need to reevaluate education as an investment in order to support the national economy in providing prosperity in the country. therefore, evaluation of the process of teachers‘ certification is needed to ensure the budget can be distributed efficiently and bring positive impacts for the improvement of the quality of education. 157 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 references adb, and oecd. reviews of national policies for education: education in indonesia rising to the challenge. reviews of 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therefore, is education” ― franklin d. roosevelt source: https://www.brainyquote.com/topics/education 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. 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 45 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. 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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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 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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yankelovich, skelly and white, inc. survey of taxpayer attitudes, prepared for the internal revenue service, december, 1984. laws and regulations 1945 constitution of indonesia law number 28 of 1999 on the implementation of a clean and free state of corruption, collusion and nepotism law number 17 of 2003 regarding state finances law number 11 of 2016 on tax amnesty presidential regulation no. 81/2010 on the grand design of bureaucratic reform 2010-2025 27 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 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 the ministry of finance 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 minister of finance decree no. 185/kmk.01/2012 on amendment to minister of finance decree no. 345/kmk.01/2011 on road bureaucratic reform roads ministry of finance year 2010-2014. director general regulation of tax no. per-37/pj/2010 on policy of information technology and communication governance of directorate general of taxation. director general regulation of tax no. per-02/pj/2017 on amendment of the director general regulation of tax no. per-27/pj/2016 on service standards in integrated service place of tax service office. 28 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 law adagium the people’s good is the highest law cicero roman politician and lawyer 195 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. 195-212 issn (print) 2548-1584 issn (online) 2548-1592 corruption and village: accountability of village fund management on preventing corruption (problems and challenges) ellectrananda anugerah ash-shidiqqi, hindrawan wibisono ellectrananda anugerah ash-shidiqqi, hindrawan wibisono faculty of law, postgraduate program, universitas sebalas maret surakarta  ellectra_aa@yahoo.co.id table of contents introduction …………………………………………………….. 196 village in the context of autonomy: the problem of corruption and accoutability ……………………….……………... 198 flow of village fund management: avoiding corruption with accountability ………………............ 202 model of accoutability of village funds: an indonesian experience ……………………………………….. 205 conclusion ………………………………………………………… 208 reference ………….……………………………………………….. 209 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:ellectra_aa@yahoo.co.id 196 e. a. ash-shidiqqi, h. wibisono jils 3 (2) november 2018, 195-212 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on may 2018 approved on september 2018 published on november 2018 village funds have not been used optimally for village development. some cases of misappropriation of village funds occur due to a lack of accountability in the use of village funds as well as the lack of supervision from related parties. the lack of competency in the use of village funds is also the reason for the occurrence of cases of abuse and corruption of village funds. this study focuses on aspects of accountability and supervision of village funds using literature. the results of this study produce an ideal model of accountability for the use of village funds ranging from supervision to use so that the village is expected to be more maximal in using village funds for development. keywords: accountability, supervision, development, village funds, corruption how to cite (chicago manual style) ash-shidiqqi, ellectrananda anugerah, hindrawan wibisono. ―the immigration crime and policy: implementation of ppns authorities on investigation‖, journal of indonesian legal studies (jils), 3 (2): 195-212. introduction law number 6 of 2014 concerning villages, hereinafter abbreviated as village law, provides an important position for villages to be able to carry out their role in national development. the important role of the village is the existence of local authority owned by the village in managing its household. this strategic role is then translated into the form of implementation of village development starting from the planning process, implementation and accountability of activities. this law provides a very significant change compared to the previous law, where the village was only a ―sub-system‖ of government without the authority of financial management independently (temenggung 2016). the provision of extensive, real and responsible authority in the regulation of legislation is a reflection of the democratization process in the implementation of village autonomy to help the central government in organizing governance in the village with a focus on the district/city government. the implementation of such broad and real autonomy is not a continuation. the factual empirical situation is the continuation of the implementation of village autonomy based on law number 5 of 1974 and even previous regulations. the objectives of the decentralization policy 197 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils implied in the law are: realizing justice between village capabilities and rights; increasing village original income and reducing subsidies from the center; encourage village development in accordance with the aspirations of each village. the village fund as one of the mandates of law no. 6 of 2014 concerning villages that must be carried out by the government not only raises excitement for villages that have been limited in the management of sources of income for village funds for the advancement of funds. the allocation of village funds which was first started in 2015 through the 2015 apbn budget with a budget of rp. 20,766.2 trillion so that the average per village gets rp. 280.3 million for 74,754 villages in indonesia. 1 the use of village funds raises classic problems in the system of using village funds, namely the allocation does not provide appropriate results for village development. as pattiro's research results show that around 6% of village funds are not in accordance with their designation in 2015, the amount will continue to grow as the annual village fund allocation increases. 2 the corruption eradication commission has carried out an inventory of at least 14 potential problems that cover regulatory and institutional aspects, management, supervision and aspects of human resources. the icw non-governmental organization in its annual report identified seven forms of corruption commonly carried out by the village government, namely embezzlement, misuse of budget, abuse of authority, illegal levies, mark ups, fictitious reports, budget cuts and bribery. the seven forms of corruption show that there are five points prone to corruption in the process of managing village funds. the five critical points are: 1. planning process; 2. the process of accountability; 3. the process of monitoring and evaluation; 4. implementation process; and 5. new procurement processes and services in terms of channeling and managing village funds. 3 while the mode of corruption of funds that was successfully monitored was among others (awaludin 2016) 1. make a budget plan draft above the market price. 2. responsible for financing physical buildings with village funds even though the project is sourced from other sources. 3. temporarily borrow village funds for personal gain but are not returned. 4. collection or deduction of village funds by individual sub-district officials or districts. 5. make fictitious official trips by the village head or his staff. 1 […] online news, http://bisnis.liputan6.com/read, accessed on 30/09/2018 2 […] online news, http://www.liputan6.com, accessed on 10/03/2016 3 […] online, www.antikorupsi.org, accessed on 6/4/2018 http://www.antikorupsi.org/ 198 e. a. ash-shidiqqi, h. wibisono jils 3 (2) november 2018, 195-212 http://journal.unnes.ac.id/sju/index.php/jils 6. mark up payment of honorarium for village officials. 7. marking up payment of office stationery. 8. collecting village tax or retribution but the results of levies are not deposited into the village treasury or tax office. 9. purchase office inventory with village funds but are intended personally. 10. trimming the public budget is then allocated to the interests of village officials. 11. doing games (conspire) in projects funded by village funds. 12. make fictitious activities or projects whose funds are charged from village funds. the amount of funds that must be managed by the village government is quite risky in its management, especially for village government officials. the phenomenon of regional officials involved in legal cases should not be repeated in the scale of village governance. village officials and village communities represented by the bpd must have understanding of laws and other provisions, and have the ability to carry out recording, reporting and accountability. therefore, as mandated in the village law, the government, provincial government, and district/city governments also help empower village communities with assistance in planning, implementing and monitoring village development (maharani 2018). village in the context of autonomy: the problem of corruption and accoutability the village according to widjaja in his book entitled ―otonomi desa‖ stated that: ―the village is a legal community unit that has an original structure based on special origin rights. the cornerstone of thinking about village governance is diversity, participation, genuine autonomy, democratization and community empowerment‖ (widjaja 2005). law no. 6 of 2014 describes villages as customary villages and villages or what are called by other names, hereinafter referred to as village/desa is a legal community unit that has regional boundaries that has the authority to regulate and manage government affairs, interests of local communities based on community initiatives, original rights traditional proposals, and/or rights that are recognized and respected in the system of government of the unitary state of the republic of indonesia. villages have an important position, especially in the development of various sectors at the national level. village management also influences the social, cultural, economic, and even legal climate on a national scale. thus, village accountability is a common concern. accountability is a term inherent in the study of governance. accountability has several meanings whose terminology is often associated with several concepts such as answerability, responsibility, liability and other terminology related to the expectations of the creditor with the executor of the mandate. 199 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils in a political context, accountability briefly covers expectations or behavioral assumptions of relations between the credentials and recipients of mandates, whereas in a broader concept accountability enables negative feedback after decisions or actions are taken, so accountability has a very important function to prevent misuse of facilities and public budgets by an institution (setiyono 2014). accountability is not only interpreted from a political context. in the context of the policy it can be seen how the mandate was carried out to fulfill the political aspirations of the people. everything that includes the way policy choices are set, the way policies are implemented and delegated, how authority is given, and how the program is implemented are entirely based on political context. if the understanding is like that then this concept is nothing but a political consequence of accountability (greco 2016; lucas 2016). 4 in line with the above understanding, it means that accountability illustrates the existence of processes and relationships between sovereignty owners, namely the people and other actors such as legislators, government officials to the lowest level of policy implementers. this relationship creates public accountability from a public institution for its actions that reflect the will and desires of the people voiced through representative institutions (lucas 2016). furthermore, bickerts, williams and john (2001) expressed ―in a country and democratic government, people as holders of sovereignty need to be guaranteed a mechanism that policy makers and implementers do not abuse their authority for their own interests, which in fact is actually detrimental to the people‖. in democratic governance the process of handover of mandates occurs to actors, such as the people with people's representatives or to a greater scope between the owners of authority (who give authority) to other actors, namely recipients of authority (bureaucracy, public officials). thus the role of accountability further clarifies the duties, obligations and rights of actors because basically the essence of accountability is the determination of clear criteria or agreements from the parties, their nature, transparency, consistent implementation, initiatives, identifying responsibilities, and encouraging participation for improvement (manar 2015). in accordance with the development of the current government, the application of the principle of accountability is an important requirement and increasingly strengthens its demands to be applied throughout all levels of government. according to the view expressed by koppel, where ―accountability is traditionally understood as a tool used to monitor and direct administrative behavior by giving an obligation to be able to provide answers (answerability) to a number of external authorities. in the most fundamental sense, accountability to the public refers to the ability to answer someone related to the expected performance‖. 4 the political power has a high influence in the management of village itself, in some cases, in other countries, this political power tends to corrupt and absolute power. 200 e. a. ash-shidiqqi, h. wibisono jils 3 (2) november 2018, 195-212 http://journal.unnes.ac.id/sju/index.php/jils koppel’s opinion underlines that accountability is closely related to administrative behavior that must be carried out by recipients of responsibility in accepting accountability from those who have sovereignty, namely citizens as owners, for all public affairs that have been mandated (koppel 2005). likewise, the opinion of bovens (2003) that as for public accountability related to public affairs carried out by public officials. from some of the views above, accountability relates to the obligation of government institutions and apparatus to answer (obligation to answer) all the mandates obtained from the people, their authority and performance achievements to the community, not just giving reports (giving an account), and for making policies or take actions that are in accordance with applicable values and according to community needs. therefore, public accountability is a mechanism that involves the people—people's representatives—and public officials up to public service providers who deal directly with the people. accountability also has a positive correlation in managing governance, especially helping recipients of responsibility in the right decision-making process. simon joss said: "processes are also supposed to enhance the legitimacy of decision-making and its outcomes through increased transparency, openness and accountability (on the policy level, between accountability and good governance) (joss 2010; yuhertiana, widajatie, and akbar 2016; yulihantini and wardayati 2016; tambe et.al. 2016), and it can be said to increase the legitimacy in decision making, the results can be obtained through transparency, openness and accountability. this situation will also be able to help realize good governance. accountability as a pillar of governance has several dimensions. dimensions are variables that can be used to measure the achievement of performance in public sector organizations carrying out functions, duties and responsibilities. one of the originators of the dimension of accountability is koppel which stated that the five dimensions of accountability are offered transparency, liability, controllability, responsibility, and responsiveness (koppel 2005). it means that there are five dimensions of accountability, namely transparency, obligation, control, responsibility, and responsiveness. first, the dimension of transparency refers to ―did the organization reveal the facts of its performance? does an organization have revealed the facts of its performance to stakeholders and the publics? second the accountability dimension refers to the "did the organization face consequences for its performance? whether an organization has realized the consequences of its actions and activities? third, the control dimension refers to "did the organization do the principal (e.g., congress, president) desired? whether an organization has done exactly what the interested parties expected? fourth: the dimension of responsibility refers to "did the organization follow the rules? does an organization follow legal rules? fifth, the dimension of responsiveness refers to did the organization fulfill the substantive expectation (demand/need)? whether the organization fulfills substantive expectations delivered in the form of needs/requests? these 201 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils questions are used as indicators of accountability in the administration of village governance and management of village funds (rodiyah 2018). 5 then, furthermore, related to the management of village funds, continuous supervision and guidance is needed (diningrat, rochelle 2018). efforts made by the government in order to achieve the objectives of administering the government in order to run effectively and efficiently according to the plan set. in government regulation no. 19 of 2008 concerning districts, coaching is the provision of guidelines, standards for implementation, guidance, education and training, consultation, supervision, monitoring, general supervision and evaluation of the implementation of governance. in conducting supervising in the village, the sub-district government especially the sub-district head and its equipment are not only limited to the results that have been achieved but also in order to shed a development and improvement for the community, and the situation in their life is better than before. supervising is a supportive task because the goal is to improve skills and knowledge so that it is better than ever. coaching includes training, assistance and assistance. in its implementation, the sub-district government always provides general direction both individually and in groups in choosing the way to solve the problem at hand. guidance is also directed at creating a more efficient, effective, clean and authoritative apparatus and able to carry out general tasks, government and development as well as possible and based on the spirit and attitude of service to the community, the nation and the state. in this supervision, the ability of government officials to plan, implement, supervise and control development needs to be improved. guidance, improvement and utilization of government tools both at the central and regional levels need to be carried out continuously so as to improve the ability of service, discipline and exemplary. beside supervision, it also needed controlling for the village. sarwoto (2002) said that supervision is the activity of managers who work so that the work is carried out in accordance with the plan set and or the desired results. from sarwoto’s opinion implicitly it can be seen the purpose of supervision is to make the work carried out according to the plan. all work in question is work that is in the process of implementation and not work that has been completed. ukas (2004) stated that supervision is a process of activities carried out to monitor, measure and if necessary make improvements to the implementation of work so that what has been planned can be carried out in accordance with the desired goals. a little different was revealed by siagian (2001) who stated that what was meant by supervision was, the process of observation rather than the implementation of all organizational activities to ensure that all works being carried out goes according to a predetermined 5 in the same context, rodiyah emphasized that administration of village government post village law is totally reform, from the basic thing, in the structure and authority. 202 e. a. ash-shidiqqi, h. wibisono jils 3 (2) november 2018, 195-212 http://journal.unnes.ac.id/sju/index.php/jils plan. the most important feature of the concept that siagian presented is that supervision can only be applied to work in progress and cannot be applied to work that has been completed. the authors conclude that supervisory actions can be considered as activities to find and correct important deviations in the results achieved from activities planned to achieve the initial objectives. the author has the opinion that the essence of supervision is to prevent as early as possible the occurrence of irregularities, waste, fraud, obstacles, mistakes and failures in achieving the goals and objectives and implementation of organizational tasks. the same thing was stated by manullang (1997) that supervision is a process to determine what work has been carried out, assess and correct if necessary with the intention that the implementation of the work is in accordance with the original plan. in essence, the manullang view above also emphasizes that supervision is a process in which the work has been carried out, then an assessment is carried out in accordance with a predetermined plan or a deviation occurs, and not only to find irregularities but also how to take steps for change and improvement stay in healthy condition. starting from the understanding of the experts on supervision as disclosed above, it can be concluded that what is meant by supervision is a systematic process of leadership activities to compare (ensure and guarantee) that the goals and objectives and tasks of the organization will and have been carried out well in accordance with the standards, plans, policies, instructions, and provisions that have been set and applicable, and to take the necessary corrective actions, in order to use humans and other resources that are most effective and efficient in achieving the objectives. flow of village fund management: avoiding corruption with accountability in the village law and minister of home affairs regulation no. 113 of 2014 as technical instructions regarding the principles of village financial management as stipulated in the village financial management explicitly state, village fund management must be carried out with four main principles, namely transparent, accountable, participatory and orderly and budget discipline. the four principles are explained as follows: a. transparent the transparent meaning of village financial management, money management is not hidden or kept confidential from the community, and in accordance with applicable legal or regulatory principles. in this principle, all sources and expenses for the village can be identified and monitored by other authorities. this transparent principle is very important, because all sources of income and expenditures made through village funds can fulfill community rights and avoid horizontal conflicts in 203 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils village communities. in this transparent principle, all village officials must indirectly carry out public information disclosure so that village officials who are sociologically cultural leaders will get complete trust and legitimacy from the public in this case the village community. b. accountable accountable based on the study of state administration has the understanding that every action of the government / institution can be accounted for to those who have the right or authority to ask for information on accountability. the implementation of activities and use of the budget must be properly accounted for, from the planning process to accountability. the accountable principle indirectly requires the village head to take responsibility and report on the implementation of the village budget (apbdesa) (subiantoro, asmony, and pituringsih 2018), in an orderly manner, to the community and to the ranks of government above it, in accordance with the laws and regulations. c. participatory village finance management this principle has the meaning that every action taken must include the involvement of the community either directly or indirectly through representative institutions that can channel their aspirations, namely the village consultative body (bpd), or other names that have the same name. this participatory village financial management principle indirectly implies that the management of village funds since the planning, implementation, administration, reporting and accountability stages must involve the community, village stakeholders and the wider community, especially marginalized groups as beneficiaries of development programs or activities in village. the involvement of all stakeholders since the beginning of all village original income used for development in the village is determined based on the needs of the village community, not the wishes of the village government along with village elites. the existence of participation from the beginning is expected that all the rights of the village community can be fulfilled by itself will grow a sense of belonging and self-reliance of the community in village development. d. order and budget discipline village finance in an orderly and budgetary discipline means that all village budgets must be carried out consistently, and recorded their use in accordance with the principles of financial accounting in the village. in the realization of tertiary village finance and budget discipline, the management of village funds must be law-abiding, must be on time, must be the right amount, and in accordance with existing procedures. the goal is to avoid irregularities, and increase the professionalism of management. asas or principle, in the large indonesian language dictionary (third edition) published by the language center of the ministry of national education, balai pustaka, 2006., basic means basic or basic law. the principle or basis means something that becomes the foundation of 204 e. a. ash-shidiqqi, h. wibisono jils 3 (2) november 2018, 195-212 http://journal.unnes.ac.id/sju/index.php/jils thinking or opinion. in the formation of a regulation or legislation the principle is the philosophy that underlies the formation of regulations or legislation. in essence the principle explains something direction, a guideline, something obligation or something that is considered right, and something prohibited. at present the village's financial resources, which are village original revenues, which are growing every year, are increasing in number, should the village actually be able to focus more on introducing public services and development on a smaller scale. autonomy that is owned under the village law is an accumulation of all assets that allows the village to get richer with its capital. village income sources originating from non-village funds and village fund allocations can be used to improve public services (irawan, gani, suryadi, and wijaya 2017), so that the community can be more efficiently and effectively served by the village government. the implementation of village governance has illustrated the low level of support for facilities and infrastructure so that services in the village are not optimal. the allocation of development originating from the government, villages can accelerate infrastructure development in the long run so that sustainable village development occurs. the reality of the village so far shows weak economic growth, high poverty and unemployment which has reduced village competitiveness compared to cities. sources of state finances are at least likely to drive the pace of village economic growth so that they are not far behind the city. even so, the apbn allocation is not merely a manifestation of the local state government approach, but rather is the responsibility of the state mandated by the constitution. the allocation of funds from the city/regency apbd is not merely a manifestation of the local self government approach, but a regional government law order. so, even though the village in this law is a self governing community, the state and local government (basria, and nabiha 2014) are still responsible for recognizing, respecting and maintaining the sustainability of government, development and empowerment of the community in the village. state recognition of the village can be seen from the recognition of the reality of village diversity in various regions (recognition principles). whereas the concretization of state respect for the village is the opening of the direct state allocation faucet that will be managed by the village (subsidiarity principle). even though the use of these two principles is preceded by constitutional recognition of the diversity and boundaries of the village in the general sense (village, traditional village and/or other names), at least it becomes a concrete foothold in further village regulation at the respective regional level. in village funds, the causes of corrupt behavior can be divided into four factors, namely: 1. lack of involvement of the community in the process of planning and monitoring village funds. community access to information on village fund management and active involvement in planning and management is 205 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils practically limited. in fact, article 68 of the village law regulates the rights and obligations of village communities to gain access and be involved in village development. community involvement is the most basic factor because it is the villagers who know the needs of the village and directly witness how the development in the village. 2. limited competence of village heads and village officials. this limitation is particularly concerning the technical management of village funds, procurement of goods and services, and the preparation of village financial accountability. 3. not optimal village institutions that directly or indirectly play an important role in village-level community empowerment and democracy, such as the village consultative body (bpd) and others. 4. it is also important to note that political cost disease is high due to the competitive arena of village head elections. increased village budgets are accompanied by increasing interest in many parties to advance in village head elections without the agenda and commitment to develop villages. model of accoutability of village funds: an indonesian experience in the participatory principle in the management of village funds, it is clearly stated that the village community must be involved in the planning of sources of income and village development. one of the things the village government must do based on the mandate of the law is to hold a village meeting (susan and budirahayu 2017). in the explanation of the village law, the village conference is a process of deliberation between the village consultative body (bpd), the village government, and community elements organized by the bpd to agree on strategic matters. in short, in the author's opinion, the village meeting is an agreement between all stakeholders in the village community to agree on strategic matters in the village. article 54 of the village law states that: (1) village consultation is a consultative forum followed by the village consultative body, village government, and elements of the village community to discuss strategic matters in the implementation of the village government. (2) strategic matters as referred to in paragraph (1) include: a. village arrangement; b. village planning; c. village collaboration; d. investment plans that enter the village; e. establishment of bum desa; f. addition and release of village assets; and g. extraordinary event. 206 e. a. ash-shidiqqi, h. wibisono jils 3 (2) november 2018, 195-212 http://journal.unnes.ac.id/sju/index.php/jils (3) village deliberations as referred to in paragraph (1) are carried out at least once in 1 (one) year. (4) village consultations as referred to in paragraph (1) are financed from the village revenue and expenditure budget. law no. 32 of 2004 concerning regional government and its implementing regulation, pp 72 of 2005, does not regulate specific village meetings. however, the correlation between these two regulations can be seen from the discussion on village planning referred to in article 54 of the village law. village meetings as desired in article 54 are a significant step in village development, especially village planning. one of the annual scheduled village plans is the village planning and development deliberation (musrenbangdes). the legal umbrella for the implementation of musrenbang is generally regulated in law no. 25 of 2004 and technically the implementation is regulated through a joint circular (seb) of the state minister for national development planning / head of bappenas and minister of home affairs concerning technical guidelines for the implementation of musrenbang issued every year. in particular the musrenbangdes is regulated in permendagri no. 66 of 2007 concerning village development planning which includes technical guidelines for organizing musrenbang for the preparation of the village medium term development plan (rpjmdes) and the annual village development work plan (rkpdes) which is then further revised through the letter of director general pmd no. 414.2/1408/pmd dated march 31, 2010 concerning technical guidelines for village development planning. in practice, according to the mixed construction used by the village law, it is very possible that there will be differences in the interests of each of the elements that make up the musdes. therefore, it is very possible that the village head who brought the interests of the district /city administration refused to implement the musdes decision, both openly and subtly. explanation of article 54 of the village law has actually given a clear line: "these results serve as a guide for the village government and other institutions in carrying out their duties". in the event of a conflict of interest, the technical regulations must provide a decisive solution, for example, the extent to which village communities have the authority to reprimand the village head. article 68 paragraph (1) of the village law does give the village community the right to supervise village administration activities and express their aspirations, suggestions and opinions. in the case of a conflict of interest relating to village origin and local rights, the village has the power to regulate and manage. whereas if it relates to the assigned authority and other authority of the supra-desa, then the village only has the authority to administer (vide article 20 and 21 of the village law). even in terms of village arrangement, the final decision remains in the hands of the district / city government. village meetings are only a forum to provide consideration and input (explanation of article 54 paragraph 2 of the village law). as stated in article 54 of the village law, the village consultation is a forum to discuss strategic matters in the administration of government. 207 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils in accordance with the meaning summarized in the meaning of the village as a legal community unit that has the right to regulate and manage its own interests, the role and involvement of the community in the administration of government and village development is a necessity. because of basically the village is a community-owned organization, village governance explicitly requires that, it can be seen from the main function of the village conference as the highest discussion forum in the village for the village head (village government) (antlov et.al 2016), 6 bpd, and community elements to discuss strategic matters for the existence and interests of the village. the role and involvement of the community is also a necessity in village financial management (pkd). every stage of pkd activities must provide space for the role and involvement of the community. the community is loosely understood as a local villager, 2 or more people, individually or jointly, playing a role and being positively involved and contributing to village financial management. the roles and intended involvement should be carried out by the villagers in an organized manner through community institutions and/or community institutions in the local village. the role and involvement of the community are important factors, because: (1) growing a sense of community responsibility for everything that has been decided and implemented. (2) cultivating a sense of belonging, so that the community is aware and able to maintain and develop the results of development (self-help), and (3) give legitimacy/ validity of everything that has been decided. in the practice of accountability in managing village funds there are three things that are of concern. first, in the contest of prevention efforts through strengthening formal and non-formal supervision function which that community participation is supervision that is believed to be the most effective so that its implementation is important. in this case, the commitment of the village government to open access to information and space for community involvement is important. and, the bpd needs to be more maximal in absorbing aspirations and inviting the public to be actively involved in village development, from mapping village needs, planning, management, to accountability. in fact, the role of the community is also important in the village’s electoral space. formal supervision needs to be optimized. the ministry of village has established a village fund task force that can maximize supervision and provide training for assistants and village heads. another thing is the importance of the ministry of home affairs (ministry of home affairs) to strengthen the capacity of village officials. until now, this effort has not been clearly seen. even though, the management of the village budget especially in the presence of very large village funds must be supported 6 at this context, hans antlov et.al emphasized that the institutional management become one of the important thing in village management as well as on making good village governance. 208 e. a. ash-shidiqqi, h. wibisono jils 3 (2) november 2018, 195-212 http://journal.unnes.ac.id/sju/index.php/jils by good quality human resources. it does not rule out the possibility of widespread corruption due to ignorance or inability of village officials to manage the budget. therefore, if capacity building is not carried out then fraud will continue to occur (tambe et.al. 2017). 7 second, in the context of efforts to prosecute and provide deterrent effects that the role of law enforcement officers is important, events such as in pamekasan may not be repeated. there needs to be good coordination between the attorney general's office, the police and the kpk. of course institutions such as the kpk cannot be given such a large burden of responsibility to oversee every village fund allocation throughout indonesia. this is because the availability of the human resources (hr) of the kpk is classified as minimal, so it is impossible to be required to oversee all villages in indonesia. it is precisely the prosecutor's office and the police that can play a role in ensuring that there are no violations of the law in allocating village funds and their implementation in the regions. as the provision of deterrent effects for the offender, in addition to the criminal process, the government (regional) should dismiss or dismiss the village head or village officer who is proven to have committed corrupt practices. dismissal should also be made to the lurah or camat who make illegal levies or deduct the distribution of village funds to the village head. third, the government needs to carry out a comprehensive evaluation and improvement regarding the distribution and management of village funds. this evaluation is important so that events such as in pamekasan regency do not recur. the government should follow up on recommendations from the kpk so that the system of managing village funds is changed to make the system simpler and not overlapping. conclusion the issue of the use and management of village funds after the village law and village autonomy in indonesia continue to roll out especially related to corruption. the number of village heads involved in the abuse of village funds and / or errors and discrepancies in the use of village funds is of particular concern. the steps that 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[…] online news, http://bisnis.liputan6.com/read, accessed on 30/09/2018 […] online news, http://www.liputan6.com, accessed on 10/03/2016 […] online, www.antikorupsi.org, accessed on 6/4/2018 http://www.antikorupsi.org/ 212 e. a. ash-shidiqqi, h. wibisono jils 3 (2) november 2018, 195-212 http://journal.unnes.ac.id/sju/index.php/jils law quote “a man who has never gone to school may steal a freight car, but if he has a university education, he may steal the whole railroad.” ― theodore roosevelt source: https://www.goodreads.com/quotes/tag/corruption 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 75 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. 75-92 issn (print) 2548-1584 issn (online) 2548-1592 implementation of discretion perspective of penal policy (study of yogyakarta police department) muhammad ikbal muhammad ikbal university of 45 mataram jl. imam bonjol, cakranegara utara, cakranegara, kota mataram, nusa tenggara bar. 83239  ikbaljotang@gmail.com table of contents introduction ………………………………………………………… 76 implementation of discretion on yogyakarta police department …………………………………………..….… 79 implementation of discretion perspective of penal policy in indonesia (study on yogyakarta police department) .………………………………………………. 85 conclusion ……………………………………………………………. 89 bibliography …………………………………………………………. 90 * this paper developed from my research thesis, funded by faculty of law universitas gadjah mada (ugm) research grant scheme (2015-2016). i would like to thank to professor eddy o s hiariej (ugm), professor marcus priyo gunarto (ugm), dr supriyadi sh mhum (ugm) for their intensive discussions. i also thank to ms niken subekti budi utami, sh msi for her valuable inputs. 76 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad ikbal jils 3 (1) may 2018, 75-92 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on december 2017 approved on february 2018 published on may 2018 the purpose of this research is to know the regulation of police discretion of yogyakarta special region in criminal law enforcement and how to apply police discretion in criminal law enforcement in terms of penal policy aspect. the implementation of the special police discretion of the special region of yogyakarta is guided by the provisions of written rules and unwritten rules that live in the community and is guided by the lines of criminal law policy. the application of the special area police discretion of yogyakarta can be applied by investigators and investigators through restorative justice approaches in certain cases, the settlement in this way is a form of protection to both the perpetrator and the victim in order to reach a peace agreement. keywords: discretion, police, penal policy introduction the 1945 constitution of the state of the republic of indonesia in article 1 paragraph 3 states the form of the state of indonesia as a state of law. 1 whereas the definition of the rule of law itself is to limit the state's power to the attitudes of the rulers and the state apparatus, and to regulate all citizens based on the law. 2 the law enforcement apparatus in carrying out its obligations, which guides not only on the substance of the law, but has to explore the living norms of society supported by good knowledge, interpretation, logic, and conscience so that law enforcement can be carried out with correct. in law enforcement, of course, cannot be separated from some aspects that support the establishment of law but need to master the principles contained in the criminal law, interpretations and analogies and mastery of criminal law theories. 1 art 1 (1) 1945 constitution of indonesia 2 abdul aziz hakim, 2011, negara hukum dan demokrasi di indonesia, yogyakarta, pustaka, p.8 how to cite (chicago manual style) ikbal, muhamamad. “ implementation of discretion perspective of penal policy (study of yogyakarta police department)”, journal of indonesian legal studies (jils), 2018 3 (1): 75-92 77 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 criminal justice system that used to solve the criminal cases emphasized that justice in society is not necessarily guaranteed because the criminal justice system is not the only tool for the parties who demand justice against him, so many several theories that emerged and a way out community justice can be obtained one of them is through efforts through restorative justice, through the efforts by using this victim and the perpetrator of crime can get a good solution that is peaceful effort. in the legal system there is a chain that should not break up with each other, when the legal system is applied in the criminal justice process the link must be maintained, the link in question is the structure, the substance, and the culture must remain mutually interact. 3 law enforcement process if implemented without seeing the values in the legal system will have a bad impact in society, the values that exist in the legal system such as philosophical, sociological and juridical values are always contradictory then the objectives of law enforcement cannot run well. in these three values contain the meaning of justice, benefit and legal certainty, these three values should not be contradictory and must be in line. in this context— implementation of law enforcement—people expect that law enforcement should more professional, because in law enforcement did not give sense of justice in society in general. 4 implementing law enforcement is a task that must be carried by law enforcement officers, such thing is an obligation that must be implemented. 5 implementation of law enforcement is a very difficult profession demands, because it must be done professionally supported by true science. in carrying out professional duties there must be factors that can support the passage of duties as well as having very disciplined personality, physical and physical health well. 6 in the opinion of satjipto rahardjo in carrying out law enforcement need to see the relationship or correlation between law enforcement with society, because law enforcement is not independent activity, but there is mutual relationship with society, law enforcement implementation also influenced by society structures which exist behind him. the community can be a constraint, because in society consists of various dimensions, either in the form of social facilities and social conditions that allow law enforcement to run, or cannot be run, because the structure of society can be obstacles that 3 lawrence m. friedman, 2013, sistem hukum perspektif ilmu sosial, translated from lawrence m. friedman, the legal system social science persfective, bandung, nusamedia, p. 17. 4 bagir manan, 2009, menegakan hukum suatu pencarian, jakarta, asosiasi advokat indonesia, p.51. 5 bernard l tanya, 2011, penegakan hukum dalam terang etika, yogyakarta, genta publishing, p. 25. 6 neal e. trautman, ny, police work a career survival guide, pearson prentice hall upper saddle river, new jersey 07458, p. 126. 78 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad ikbal jils 3 (1) may 2018, 75-92 http://journal.unnes.ac.id/sju/index.php/jils cause law enforcement cannot be run carefully. 7 one of the law enforcement agencies to be discussed in this paper is the police institution as an investigator institution in indonesia which is regulated in law no. 8 of 1981 on the criminal procedure code and some of its provisions regulate the authority of the police institution in performing the duties and obligations in handling a case. according to marcus priyo gunarto, that the police institution is one component of the criminal justice system in indonesia, this institution is the first entrance of a criminal case, so in the criminal justice system, the police institution in handling a case or case must be charged with sensitivity. 8 the police in applying discretionary measures, not rigidly bound to the sentence of a rule. in law enforcement, members of the police force must act quickly, as opposed to concrete cases, the police force needs ample room for the action to reach the goal and succeed in its task. 9 in applying the discretion, the police often experience obstacles or factors that can hinder the task, so that in applying the provisions of criminal law need the existence of policies, such as stopping or putting aside the criminal case that is deemed accountable from the angle of police duties. 10 the police of indonesia continue to improve and improve the quality of service, integrity and professionalism. progress and development of science and information technology become the demands and expectations of the public for the performance of police and it is possible to do repositioning that leads to strengthening the role and function of the police in carrying out the duties and authorities as a police. performing a reposition is a step to answer various problems and challenges in the task, as the reason for repositioning and fulfillment of the demands and expectations of the community to materialize, safe life peaceful society, orderly, prosperous, and realize the police beloved and trusted the community. 11 if looking at the characteristics of the police in carrying out its work very closely with the use of coercive power, it often leads to negative assumptions of the community, as well as in making decisions that must be done individually or individually. decision-making the need for maturity in action by promoting moral considerations, rationality and prioritizing public interest, inadequate policy making and excessive use of police power will have a disadvantageous effect, although on the grounds that safeguarding is the 7 satjipto rahardjo, 2009, penegakan hukum suatu tinjuan sosiologis, yogyakarta, genta publishing, p. 31. 8 marcus priyo gunarto, 2000, “sikap memidana yang berorientasi pada tujuan pemidanaan”, mimbar hukum, 21 (1), p. 94. 9 satjipto rahardjo, 1980, hukum masyarakat dan pembangunan, bandung, alumni, p. 148. 10 marcus priyo gunarto, 1994, “batas-batas pengguna diskresi dalam penanggulangan kejahatan pelajar dan mahasiswa di wilayah polwil yogyakarta dan polres klaten”, research report, fh ugm, yogyakarta, p. 41. 11 suara kompolnas april, 2014, bersama membangun polri yang professional dan mandiri, p. 14. 79 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 primary duty of the police by using refreshing measures always take precedence but sometimes tend to appear abuse of power or abuse of police power that violate human rights. 12 in carrying out the duties of police officers are often confronted with two impressions of characters or mythic image, members of the police force as criminals and control of public order. 13 these two can be done by investigating and investigating the crime, this activity also to anticipate the occurrence of crime as well tackling crime as a whole, it is the duty of the police all over the world. investigation and investigation activities are an attempt to make the light of a criminal case based on the ability and skills of collecting evidence so that the suspect can be prosecuted. 14 investigation and investigation activities are part of preliminary investigations or preparation for prosecution and authorities, investigations and investigations are police actions to carry out repressive tasks. while the police action in general to maintain public order and obedience to the law is a preventive task. the two police tasks are interrelated, but must be strictly separated to avoid mistakes in acts leading to the abuses of authority and unlawful acts by police officers. 15 implementation of discretion on yogyakarta police department the setting of discretion in the police this description of restorative justice is explained by many scholars in several writings, whether in a book or in an article or journal. furthermore, the elaboration of the definition of restorative justice in the opinion of horward and marshall as cited by marwan effendy is: the concept of criminal justice which views criminal acts as a crime against the public is not a crime against the state and to create obligations for victims and society to improve it. this concept focuses on the dangers of crime rather than the violation of a provision and outlines the relationship between the victims of society against the offenses associated with the punishment imposed by the state. the restorative justice model provides the right, direct and indirect dialogue between victims and perpetrators in the form of mediation 12 m. wresniwiro, 2000, membangun polisi profesional, jakarta mitra bimtimas, p.96. 13 jenifer m. brown, 1994, stress and policing sources and strategies, england jhon wiley and baffins lane, chichester west sussex, wiley publishing, p. 151. 14 ibid,.p. 274. 15 bambang poernomo, 1988,pola dasar teori dan azas umum hukum acara pidana, yogyakarta, liberty, p. 39. 80 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad ikbal jils 3 (1) may 2018, 75-92 http://journal.unnes.ac.id/sju/index.php/jils between victims and perpetrators.16 the concept of restorative justice according to yoachim agus tridiartono is a form of justice that focuses more on the needs of victims, perpetrators of crime and society. so that the victim becomes the object of suffering from the consequences of the crime committed by the perpetrator, the victim holds accountable to the perpetrator for the deed done to the victim, so that the dignity of the perpetrator can also be recovered so that the society condition becomes harmonious on agreement between the victim and the perpetrator to make peace so there is no vengeance between perpetrators and victims. 17 similarly, in the opinion of susan sharpe as cited by allison morris and gabrielle maxwell that there are five principles of restorative justice in solving criminal cases so that police action can be done by the police: a. requesting the participation of other parties to the agreement of both parties, the victim and the perpetrator so that the community may be involved or an interested person interested in participating in the settlement of the problem. b. seeing what has been damaged for correction, the victim and the perpetrator to both mutually improve and both parties must be able to escape from mistakes or fears, they need to require a solution that underlies the conflict or the problem of evil, both parties are given the opportunity to use the mind with correct. c. directly look at the situation to be accountable, although it is not so easy that the offender must face the fact that they have violated the law, they must also meet with the person who suffered a loss and see how their actions against other damage. various interested parties expect an explanation of what happened to the victim and the community so as to make sense of it. parties will always expect to take rare to repair the damage. d. redefining the things that have split the cause of the crime between the people in society that caused enormous damage. the restoration process works directly towards peace for victims and perpetrators to reintegrate into society. holding to the restorative view between the victim and the perpetrator is only temporary and non-permanent. each of them thinking about the future and forgetting the past. not too long establish the cause of loss and suffering. e. can see ways to strengthen the community in maintaining the order so that there is no damage. 18 16 marwan effendi, 2014, teori hukum dari perspektif kebijakan perbandingan dan harmonisasi hukum pidana, jakarta, gaung persada press group, p.132 17 yoachim agus tridiatno, 2015, keadilan restoratif, yogyakarta, cahaya atma pustaka, p. 27. 18 allison moris dan gabrielle maxwell, 2001, restorative justice for juveniles, oxford hart publishing, portland oregon, pp. 5-6. 81 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 similarly, on the principles of restorative justice, according to tony marshall and susan sharpe, quoted by marlina that this principle has actually been practiced for thousands of years by the community even though nonformal. thus it is further argued by marlina that in indonesia restorative justice is often used in some areas with the term of familial settlement, it is a tradition in society, this form of practice has also developed as in european countries, america, canada, australia and new zealand in terms which are different but in principle the same. 19 the general discretion according to lawrence m. friedman that this discretion has a variety of meanings but more to the consideration of very subjective thinking, meaning that when faced with a case in the implementation of law enforcement with the authority or power and the status of law enforcers can choose among various alternatives, because in principle the rules of law have several aspects and have a double meaning both to legal officers and to the public. 20 similarly, opinion prawira et al in legowo saputro explain the form of discretion can be grouped into two consisting of: a. the discretion is individualized, the discretion done by the police officers in the field based on the knowledge and understanding that is considered correct, usually the implementation and implementation in the field based on emergency situations and conditions so that without any observation or in-depth research on what he decided. b. the discretion made is organizational usually the guidelines are the policies of the applicable bureaucracy. 21 in the implementation of discretion even though its implementation rests on the mind and conscience of individual members of the police force, but there are still arrangements as a guide so as not to get out of the legal purpose. discretionary arrangements in his opinion roger cotterrel says the use of things is required not to set standards in legislation, administration and in court. while a legal regulation requires that official government action be controlled by a clear regulation that allows the creation of the essentials of citizens' rights and duties. a discretionary rule in his opinion emphasizes relativity and virtue in implementing a policy in official government action rather than formal execution according to the rules, so discretionary arrangement is often interpreted as the main thing in the substantive law as a form of fulfillment of certain political goals, social benefits and moral values through law. 22 19 marlina, 2012, peradilan pidana anak di indonesia, pengembangan konsep diversi dan restorative justice, bandung, reflika aditama, pp. 180-181. 20 lawrence m. friedman, 2009, sistem hukum, bandung, nusamedia, p. 42 21 legowo saputro, 2015, “diskresi anggota kepolisian negara republik indonesia dalam penanganan aksi unjuk rasa dan implikasinya terhadap ketahanan wilayah”, thesis, yogyakarta, universitas gadjah mada. 22 roger cotterell, 2012, sosiologi hukum, bandung, nusamedia ujung berung, p. 225 82 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad ikbal jils 3 (1) may 2018, 75-92 http://journal.unnes.ac.id/sju/index.php/jils similarly, discretionary arrangements according to hon edward f wait that the police officer in performing the task field, when found a criminal act can directly arrest but may not directly conduct a detention even in the event of a crime or violation with some evidence in hand even if police officers directly or automatically make a detention, in addition to the application of police-party discretion, it must also require some experts to clearly define the efforts undertaken for law enforcement in certain acts. 23 legal basis for implementation of discretion on yogyakarta police department police in acting based on their authority have never escaped and are always in touch with human rights in terms of what actions of the police, the reasons for the authors pointing out here in some provisions of article by article and several verses are put forth in its entirety in order to make clear the actions taken by the police shall be governed in several statutory provisions and rules under the law or the decision of the head of the police, if related to the opinion of utrecht as cited by untung s. rajab all police authorities in acts governed by such provisions in their respective acts the police always require discretion. 24 in the provisions of law number 30 of 2014, article 30 paragraph (1) on government administration explains the category beyond the authority when applying discretion, such as acting has passed the time limit of the authority of an official granted by the provisions of legislation, with the general principles of good governance, if this is done then the act of discretion is invalid. as the basis of behavior in acting in applying discretion, the regulation is regulated in the provisions of article 1 of regulation of the head of state police of the republic of indonesia number 14 year 2011 regarding code of ethics of the police professional of the republic of indonesia. article 1 point 5 is the code of ethics of the police profession, hereinafter abbreviated as kepp 25 . then in article 4 describes some ethics that must be executed by members of the indonesian republic police in carrying out their duties and authorities are: (1) state ethics; (2) institutional ethics; (3) community ethics; and (4) personality ethics. of the several ethics that must be carried out above in the provisions of article 5 of the indonesian national police regulation no. 14 of 2011 on 23 hon edward f wait, 1911, “police discretion in the enforcement of law”, the american institute of criminal law and criminology, 1 (5), pp. 794-795 24 untung s. rajab, 2003, kedudukan dan fungsi polisi republik indonesia dalam sistem ketatanegaraan berdasarkan uud 1945, bandung, cv utomo, p.214 25 definition of kepp itself is the norms of the rules which constitute the unity of the ethical or philosophical foundation relating to the behavior or speech regarding the things that are required, prohibited, inappropriate or inappropriate to be done by the polri members in performing the duty, authority and responsibility of the position 83 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 police ethics, re-explain the state ethics which contains the guidelines of behaving police members in relation to the establishment of the unitary state of the republic of indonesia or nkri, pancasila, the basic state of the republic of indonesia of 1945, and bhineka tunggal ika (unity in diversity). in the state ethics described also in article 6 which must be implemented by members of the indonesian republican police that is loyal to the republic of indonesia based on pancasila and the 1945 constitution of the state of the republic of indonesia, safeguarding the internal security which includes maintaining the security and order of society, order and law enforcement , the implementation of the protection, protection and public service, and the establishment of the tranquility of the people by promoting human rights, maintaining the unity of the nation and the unity of the nation in bhineka tunggal ika with the high end of the sovereignty of the people, prioritizing the interests of the nation and nkri rather than self-interest, person and/or class. later in institutional ethics contains guidelines to behave members of the police in relation to the tribata as a living guide, catur prasetya as a work guide. in social ethics contains guidelines for behaving of members of the police in relation to the maintenance of public order or security or order, law enforcement, protection, guidance and community service. in personality ethics contains guidelines for behaving of members of the police in relation to religious life, obedience and obedience to the law and manners in family life, community, nation and state. furthermore, for institutional ethics, it is also described in article 7 paragraph (1) that the police force is obliged to be loyal to the police as a service to the community, nation and state by guiding and expanding the tribata and catur prasetya, maintaining and enhancing the image, solidarity, credibility, reputation, and the honor of the police, carrying out their duties professionally, proportionally and procedurally, to resolve the task carefully and responsibly. from several provisions regulated by law and regulation concerning police duties and authorities there are matters to be considered as well as the provisions set forth in article 8 of the regulation of the head of state police of the republic of indonesia number 14 year 2011 regarding the code of ethics of the state police of the republic of indonesia which stated that: each police member shall prioritize roles, duties, authorities and responsibilities under the provisions of legislation rather than status and rights, taking into account religious norms, morality norms, and the values of local wisdom. the provisions of article 8 have been described in the above discretionary measures set out by roger cotterell, that members of the police force should prioritize the public interest in performing duties rather than 84 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad ikbal jils 3 (1) may 2018, 75-92 http://journal.unnes.ac.id/sju/index.php/jils personal or group interests. 26 when there is a suspicion of a criminal offense, a police officer in the process of investigation or investigation of a case, a member of the police has an obligation to carry out, it is also regulated in the police code of ethics article 9 stipulates: every member of the police who performs law enforcement tasks as investigator investigator assistants and investigators are obliged to conduct investigation of criminal case investigation and resolve in accordance with the provisions of legislation and report the results of the implementation of their duties to the superior investigator. as the state apparatus in the case of law enforcement as described above in the social ethics of each member of the police in carrying out the duty, of course always dealing with the public so as the state apparatus that the position attached to a member of the police force can act on their own without prior orders from the superiors , the act is always related to the interests of the community, as well as to public order and peace, but with the limits set in ethics as described in article 10 code of ethics each police member shall: 1. respect human dignity and human dignity based on basic principles of human rights; 2. uphold the principle of equality for every citizen before the law. 3. providing services to the public quickly, accurately, easily, comfortably, transparently and accountably in accordance with the provisions of laws and regulations; 4. performing the first police action as required in the police duties, whether on duty or off duty. 5. providing public information services to the public in accordance with the provisions of legislation; 6. upholding honesty, truth, justice and maintaining honor in dealing with society. the provisions of article 11 of the regulation of the head of police of the republic of indonesia no. 14 of 2014 concerning the ethics of police members that every member of the police has the obligations set forth in the provisions of the rules such as the obligation to believe and cautious to the omnipotent god, be honest, trustworthy, responsible, disciplined, working together, fair caring, responsive, assertive and humane, and obeying and respecting the norms of decency, religious norms, the values of local wisdom and legal norms. the provision of this article 11 is necessary to be explained because the provisions if applied are a reflection of the morality of police personnel. 26 roger cotterell, op,cit. 85 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 similarly, in the opinion of don l. kooken, the code of ethics serves as a standard to justify the rules on the behavior of police officers and its provisions can be used. the code of ethics can also provide a very objective underlying understanding of the standardization of rules in general in which the provisions of legislation or the rules of the police agency can help to conform. 27 implementation of discretion perspective of penal policy in indonesia (study on yogyakarta police department) implementing law enforcement is the main duty of the police throughout the world, as well as with the special district police of yogyakarta (polda diy), that law enforcement can be done with criminal law policies aimed at preventing and tackling crime, so according to barda nawawi efforts or policies to prevent and the prevention of crime is inseparable from the social policy that is the policy or efforts to provide welfare to the community and protect the community, so in the prevention of crime committed by using penal means at the application stage should pay attention and lead to the achievement of the goal of social policy. 28 according remington and ohin as quoted by romli atmasasmita, argued that the criminal justice system can be interpreted as a system approach to the interaction of law enforcement elements in the administration of justice. 29 in the judicial system in the opinion of helbert l packer that the criminal justice system has two models: crime control model and due process model, the two system models referred to by packer, if using a crime control model provide an illustration that professional action is required because this model is more likely to emphasize aspects of war against criminals in the judicial process, while the due process model is more to the process and tend is in the middle. 30 furthermore, according to packer crime control model more to efficiency in criminal justice process more to applying principle of presumption of guilt, while due process model more to applying presumption of innocence principle, the two models are conflicting ideas, the presumption of innocence cannot predict 27 don l. kooken, 1947, “ethics in police service”, journal of criminal law and criminology, 38 (1): 61-74 28 barda nawawi arif, 2007, masalah penegakan hukum dan kebijakan hukum pidana dalam penanggulangan kejahatan, jakarta, kecana prenada media group, p. 77. 29 romli atmasasmita, 2010, sistem peradilan pidana kontemporer, jakarta, kencana prenada media group, p. 2. 30 helbert. l. packer, 1986, the limits of the criminal sanction (chapter eight, two model of the criminal process), california, stanford university press stanford, p. 157. 86 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad ikbal jils 3 (1) may 2018, 75-92 http://journal.unnes.ac.id/sju/index.php/jils the outcomes and consequences that will occur or the impact of the process, whereas the presumption of guilt presumption can predict the outcome or impact. 31 according to two models presented by packer, in the judicial system can be an analytical tool for the judicial system in indonesia, especially the judicial system conducted by the special district police of yogyakarta, whether to use one or combine the two models, if the two models are connected with discretion, according to the author of crime control model if in the application of discretion using this model in the criminal justice system or the criminal justice system (spp) is more likely to apply the discretion used is individual or individual of the police members, while the due process model if the application of discretion in this model, more to the action of discretion done by the police institution or organization. if it is related to the discretion actions conducted by the yogyakarta special region police with the opinion of legal experts such as bentham against the above case examples, it has correlation so that the actions taken by the special region yogyakarta police according to the author has been extraordinary, because of the policy it is the rights of the perpetrator and the victim both can be protected. if the policy adopted by the yogyakarta provincial police investigator connected with bentham's opinion states that the application of the criminal law in a case has absolutely no value of justification, if merely applied or imposed, because it always gives a lot of suffering or even harm community. 32 departing from this thinking according to heather strang and jhon braithwaite that criminal prosecution in today's criminal justice system always involves victim and perpetrator in decision making, so that sanction given to perpetrator also pay attention to his rights and life in the future. 33 from the opinion of experts or doctrines already described above, as well as the application of special police discretion in yogyakarta, so the writer took the red thread between the interview with the investigator about the implementation process of punishment conducted by the yogyakarta special police, that the application of discretion in the new breakthrough by the investigators of the yogyakarta regional police are still in certain cases who are concerned about the rights of the victims and demand the obligations that must be fulfilled by the perpetrators of crime as in the example of the above case table 1 number of discretion cases in yogyakarta, on 2015 no type of crime provision number other explanation 31 ibid. 32 eddy.o. hieriej, 2006, teori perundang-undangan: prinsip-prinsip legislasi hukum perdata dan hukum pidana, nurhadi (trans), nuansa, bandung, p.25 33 ibid., p. 26 87 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 crime of false notice kuhp 1 not explained 2 theft and violence kuhp 1 not explained 3 domestic violence kuhp 2 not explained 4 adultery kuhp 2 not explained 5 serious deeds kuhp 1 not explained 6 fraud kuhp 3 not explained 7 fraud and embezzlement kuhp 10 not explained 8 falsification of letters kuhp 1 not explained 9 embezzlement kuhp 1 not explained source: yogyakarta police department. table 2 number of discretion cases in yogyakarta, on 2016 no type of crime provision number other explanation 1 fraud and embezzlement kuhp 3 not explained 2 domestic violence kuhp 2 not explained 3 persecution kuhp 1 not explained 4 embezzlement kuhp 2 not explained source: yogyakarta police department. from the data obtained from the police in yogyakarta special region police (polda diy) in 2015 which is in the table compiled by the author there are 9 types of crime with each number of cases that have been done discretion action with the total number of cases, 22 cases, the authors make in the form of data tables in order to easily find out the number of cases that have been done discretion by the police in the special district police yogyakarta (polda diy). of the above cases the most numerous are cases of fraud and embezzlement. regarding article which is imposed in each case is not explained as seen in the table above, it is proved that every type of crime contained in the table of year 2015 has been undertaken discretion measures. with the example of the above cases it is evident that the application of discretion by the police in the police of polda diy is a form of criminal law policy both intended by the explanation of sudarto and a murder in strafrechts politiek, of 9 types of cases taken discretionary action with a total of 22 of actions or policies that have been done is a very progressive action, because it can see that the criminal acts committed by individuals or society should not be solved by using the principle of legality alone but can be solved by efforts outside the court. regarding the data table from the year 2016 above, the implementation 88 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad ikbal jils 3 (1) may 2018, 75-92 http://journal.unnes.ac.id/sju/index.php/jils of discretion by the police in the special district police yogyakarta polda diy of 4 types of cases with the amount of 8 acts of discretion has been done. from the two tables above, the discretion of 2015 to 2016 is evidence that the police in the special district police of yogyakarta polda diy always apply discretion measures with various types of cases that have been done. the implementation of discretion by the yogyakarta special district police (polda diy) which has been described earlier by the author, when viewed from the penal policy that the application of discretion in a criminal case is indeed a lot of obstacles to be faced, but to explain things thus first explaining the underlying problem in criminal policy by means of penal or criminal law, as it is a matter of how to determine: (a) what actions should be criminalized; and (b) what sanctions should be used or imposed on the offender. for two things above can be released from the concept of interconnected, the two concepts above each intended from the concept of criminal policy with the concept of social policy or also called national development policy. the above two concepts should be directed towards achieving certain goals of established social and political policy. 34 if we look at the form of the application of discretion by a special region police officer of yogyakarta (polda diy), in some ways already described above, be it done by the investigator in charge of the field as well as the investigator as the administration in the process of a criminal case. the author explains about discretion and criminal law policy, if interpreted the definition of discretion is a policy conducted by individuals or individuals and organizations, while the understanding of criminal law policy, if re-quotes marc ancel’s opinion described by barda nawawi is a science and art ultimately has a partial purpose to enable the rule of positive law to be formulated better and to provide guidance not only to lawmakers but also to courts that apply the law as well as to the organizers or executing court decisions. 35 continuing the above explanation that criminal justice policy is also synonymous with strafrecht politiek, as barda nawawi cites a. murders’s view that strafrecht politiek, is the policy line that determines, how far the applicable criminal provisions need to be changed, what can be done to prevent the occurrence of criminal offenses and regulate the manner in which criminal investigation and execution should be conducted. 36 based on the opinion of a murder on the application of discretion by a special region police officer of yogyakarta, if connected with the activities undertaken by the investigator and the investigator has been done and has been applied, even if guided from the opinion of a murder according to marc 34 barda nawawi arief, op.cit., p. 30 35 ibid., p. 23. 36 ibid. 89 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 ancel contrary to the legal system because in an organized society it has a criminal law system consisting of: criminal law rules and sanctions, a criminal law procedure and a criminal enforcement mechanism. according to the author what a murder describes is a form and a line of policy in applying an act of discretion that the opinion of a murder becomes very strong with the policies made by members and officials of the yogyakarta regional police in solving a criminal case. if refer to the opinion of a murder and marcus priyo gunarto that the application of discretion is indeed deviate from the provisions of the law but not contrary to the purpose of law, from the opinion that the discretion applied by members of the special region of yogyakarta police has been able to say a breakthrough that previously the application of discretion only on but in severe cases discretion has also been applied only to certain severe cases more to the criminal acts committed by the company, although responsible in this regard according to akbp riyanto is the owner of the company, such as the case examples described above. conclusion the application of special police discretion of yogyakarta region conducted by yogyakarta police department, it has been a breakthrough in the criminal justice system which, in the opinion of howard and marsall, argued that the criminal justice system has always considered crime more to the people than to the state. from this the pattern of settlement is more priority settlement made by the community itself is the settlement using restorative justice facilitated by law enforcement that is the police. if seen from the pattern of criminal law crime policy conducted by police in polda diy has been a new breakthrough in the application of discretion, investigators and police investigators in polda diy in solve more problems to see the rights of victims and perpetrators so that with the policy it settlement of the case submitted to interested parties and the community. the approach of restorative justice provides benefits to both parties—victims and perpetrators—of the same criminal acts to obtain a peace agreement. if viewed from the aspect of criminal law policy application of discretion conducted by polda diy is in line with the theory put forward by sudarto and a murder that his both opinion almost the same explain how the policies that can be taken with guided by existing provisions but can apply. 90 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad ikbal jils 3 (1) may 2018, 75-92 http://journal.unnes.ac.id/sju/index.php/jils bibligoraphy arif, barda nawawi. masalah penegakan hukum dan kebijakan hukum pidana dalam penanggulangan kejahatan. jakarta: kecana prenada media group, 2007. atmasasmita, romli. sistem peradilan pidana kontemporer. jakarta: kencana prenada media group, 2010. brown, jenifer m. stress and policing sources and strategies. west sussex england: jhon wiley and baffins lane, chichester wiley publishing, 1994. cotterell, roger. sosiologi hukum. bandung: nusamedia, 2012. effendi, marwan. teori hukum dari perspektif kebijakan perbandingan dan harmonisasi hukum pidana. jakarta: gaung persada press group, 2014. friedman, lawrence m. sistem hukum. bandung: nusamedia, 2009. -------------------. sistem hukum perspektif ilmu sosial, translated from lawrence m. friedman, the legal system social science perspective. bandung: nusamedia, 2013. gunarto, marcus priyo. “batas-batas pengguna diskresi dalam penanggulangan kejahatan pelajar dan mahasiswa di wilayah polwil yogyakarta dan polres klaten”, research report. fh ugm, yogyakarta, 1994. gunarto, marcus priyo. “sikap memidana yang berorientasi pada tujuan pemidanaan”, mimbar hukum, 2000 21(1): 84-106. hakim, abdul aziz. negara hukum dan demokrasi di indonesi. yogyakarta: pustaka, 2011. hieriej, eddy.o. teori perundang-undangan: prinsip-prinsip legislasi hukum perdata dan hukum pidana, nurhadi (trans). bandung: nuansa, 2006. kooken, don l. “ethics in police service”, journal of criminal law and criminology, 1947 38 (1): 61-74. manan, bagir. menegakan hukum suatu pencarian. jakarta: asosiasi advokat indonesia, 2009. marlina. peradilan pidana anak di indonesia, pengembangan konsep diversi dan restorative justice. bandung: reflika aditama, 2012. moris, allison and gabrielle maxwell. restorative justice for juveniles. portland oregon oxford: hart publishing, 2001. 91 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 packer, helbert. l. the limits of the criminal sanction (chapter eight, two model of the criminal process). california: stanford university press, 1986. poernomo, bambang. pola dasar teori dan azas umum hukum acara pidana. yogyakarta: liberty, 1988. rahardjo, satjipto. penegakan hukum suatu tinjuan sosiologis. yogyakarta: genta publishing, 2009. rahardjo, satjipto. hukum masyarakat dan pembangunan. bandung: alumni, 1980. rajab, untung s. kedudukan dan fungsi polisi republik indonesia dalam sistem ketatanegaraan berdasarkan uud 1945. bandung: cv utomo, 2003. saputro, legowo. “diskresi anggota kepolisian negara republik indonesia dalam penanganan aksi unjuk rasa dan implikasinya terhadap ketahanan wilayah”, thesis, yogyakarta, universitas gadjah mada, 2015. suara kompolnas april. bersama membangun polri yang professional dan mandiri, 2014. tanya, bernard l. penegakan hukum dalam terang etika. yogyakarta: genta publishing, 2011. the 1945 constitution of indonesia, undang-undang dasar negara republik indonesia tahun 1945. the indonesian criminal code (kuhp), kitab undang-undang hukum pidana. the indonesian procedural criminal law (kuhap), kitab undang-undang hukum acara pidana 92 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang muhammad ikbal jils 3 (1) may 2018, 75-92 http://journal.unnes.ac.id/sju/index.php/jils law adagium lex nemini operatur iniqum, neminini facit injuram the law works an injustice to no one and does wrong to no one 25 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. 25-36 issn 2548-1584 e-issn 2548-1592 politics of law on protection to folklore in a regional autonomy perspective: rights for indigenous people auria patria dilaga 1 auria patria dilaga public lawyer, semarang. corporate and ipr division in law office m. ali purnomo, s.h., m.h & co., semarang.  patria.dilaga@gmail.com article info abstract submitted on july 2016 approved on january 2017 published on may 2017 the study of political law on protection of folklore with the perspective of regional autonomy is expected to be realized ideal protection. the problem in this research is why foklore need to be protected in the perspective of regional autonomy and how the political law of folklore protection in the regional autonomy perspective. this research approach method using normative juridical approach method. the result of this research is foklore needs to be protected because it is part of the wealth of the republic of indonesia. folklore needs to be protected in the perspective of regional autonomy because it is a work that was born and developed and preserved in their respective regions. the politics of law of folklore protection in the perspective of regional autonomy is by making technical implementation policy up to the level of local regulations for the benefit of folklore protection, one of them with the policy of inventory. the conclusions and suggestions in the research are foklore is a human work that must be protected especially in the perspective of regional autonomy and it is advisable to immediately pass a regulation on protection against folklore. keywords: politics, law, protection of folklore, autonomy 1 i would like express my special thankfulness to editorial boar of journal of indonesian legal studies, postgraduate program, faculty of law, universitas negeri semarang especially to mr. dani muhtada phd and mr ridwan arifin, s.h., ll.m., who help me to evaluate and giving a lot of input to this paper. mailto:patria.dilaga@gmail.com 26 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang auria patria dilaga jils 2 (1) may 2017, 25-36 http://journal.unnes.ac.id/sju/index.php/jils introduction politics of law as the basic policy that determines the legal choice of a country, in other words that politics of law is a grand design of the laws of a country that regulate the legal order of a country so as not to deviate from the purpose of the state. politics of law is not just talking about or discussing the existing and applicable law (positive law) but will also organize and plan the future law according to the condition of the nation and state. article 32 paragraph (1) of the 1945 constitution recognize the ownership and utilization of art and culture by a group of people or certain communities. thus the work of a particular society or group is included in the creation. creation exists because there is a creative and existent existence and contains a novelty, therefore law no. 19 of 2002 concerning to copyright as amended by law no. 28 of 2014 on copyright, regulating the protection of creation as well as folklore. folklore itself, is a work unknown to its creator, in the copyrights law there is a special section discussing it, namely chapter five on the expression of traditional culture and creation that is protected in the first part about the expression of traditional culture and the copyright of a creator whose creator is not known there are two articles, namely article 38 and article 39. today folklore becomes an attractive commodity to be contested because it has good economic value. basically foklore in demand because foklore it is a symbol or identity of a particular area. 2 foklore as an object of custom or community or unknown creation whose rights are owned as a property of the state and whoever uses them shall royalties to certain countries or regions or communities, as well as in regional autonomy era. regional autonomy adopted by indonesia should be optimized for its function, in guarding law enforcement that is in harmony with the intent and purpose of the state. the principle of decentralization means giving the widest possible authority to the regions with the granting of certain rights and obligations. 3 should the protection of folklore be easier to implement, naturally the area is the closest organ to the indigenous peoples of the creator so that it will better understand the background, philosophy and benefits of the work there. the technical role of local government is needed as an arm of the state to provide legal protection from folklore. regions may make rules such as local regulation (perda), governor regulation, mayor regulation or other enabling regulations to prevent and overcome violations of folklore and may create technical policies regarding the benefit sharing of a work on which it 2 suwardi endaswara, metodologi penelitian folklore konsep, teori dan aplikasi. jakarta, media pressindo, 2008, p. 3 3 siswanto sunarno, hukum pemerintahan daerah di indonesia, jakarta, sinar grafika, 2009, p.4. 27 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 applies. sharing fee or benefit sharing in addition to appreciation of a work on the other hand also generates revenue for the region or country. this paper, according to the description on the background above, would discuss two main things, first, why should should folklore be protected in the perspective of regional autonomy, and second, what is the legal politics of folklore protection in the regional autonomy perspective? the supporting theories in this research is the theory of the pure of law from hans kelsen. the theory developed by hans kelsen encompasses two important aspects, namely the static (nomostatics) aspect which sees actions governed by the law and the dynamic (nomodinamic) aspect which sees laws governing certain acts. 4 in this study the theory of the pure of law proposed by hans kelsen will be used to analyze the second problem of folklore protection law politics in the regional autonomy perspective. the protection of foklore in regional autonomy era the existence of regional foklore folklore on the model provisions for national law on protection of the expressions of folklore against illicit exploitation and other prejudical actions 1982, grouped into several types. in the model provisions are reflected on aspects of community life throughout the region, namely: verbal expression, expression of music, expression of motion, real expression. the works in full are accommodated in the copyrights law, the formulation of the law already regulates the existence of the culture referred to in that category. the concept of folklore is closely related to the region as the “owner” of folklore, so that the provincial and district/municipal governments hold important duties and functions in their protection. implementation of local government as regulated by law no. 32 of 2004 as amended by law no. 23 of 2014 on regional government (regional government law). as for the matters of the central government is the obligatory government affairs and government affairs of choice, which as provided for in article 12 paragraph (1) to (3) regional government law. article 12 paragraph (2) explicitly discusses the subject of culture. it can be seen that in the regional government law 2014 contributes to cultural protection but does not explicitly mention its relevance to intellectual property rights. with the premise that folklor is an expression related to art culture, knowledge culture and technological (know-how), the existence of folklore must also be protected from local government. 4 jimly asshiddiqie dan m. ali safa’at. teori hans kelsen tentang hukum, jakarta, konstitusi press. 2012, p. 8. 28 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang auria patria dilaga jils 2 (1) may 2017, 25-36 http://journal.unnes.ac.id/sju/index.php/jils the reason is that the absence of a special regulation on the regulation of folklore protection internationally and nationally makes folklore vulnerable to misuse by foreign parties. to overcome this, it is necessary to have an active role of government in doing folklore protection efforts. this enormous potential is a form of folklore that must still be protected by the state (in this case the government). to date, the government's attention to traditional knowledge and cultural expression is still limited to the process of recording, even though its conservation efforts are still ongoing. in fact, in this era of free trade now required a well-established protection against the potential derived from traditional knowledge. these potentials should be administered (recorded) to clear the ownership of traditional knowledge by each country. the results of the above cultural work needs to be studied more to do the category of folklor areas that have died, are growing and living. this should be done in order to make inventarisir as well as handling of the kinds of actions necessary to preserve the existence of regional folklore. folklor area is something that has value in the life of a community or community of a particular community for it needs an integrated protection to achieve the desired goals. folklore protection of the real area is the responsibility of all citizens and nation of indonesia. it's just that the role and level of responsibility of various components of the people's society is not the same. there are responsibilities emerging from the stakeholder community (source) of a traditional cultural asset, there is the responsibility of activists and actors of expression of a cultural asset, there is also a role and responsibility of the government. presence and support of foklore regional community most of the people who develop activities based on this traditional culture are people who are still far from the literate culture, so the inventory can not only rely on the role of community or local community. the disadvantage that needs to be changed is to change the local community from being overly concerned about foreign claims by being a sensitive community through the involvement of support from the cultural community. therefore, the involvement of the good elements of individuals, communities, communities and governments is crucial in this inventory. the role of the state becomes important, because today’s economic and trade relations have shifted. international trade today involves not only the legal subject of private companies, but also involving governments as its subjects. a country that functions as a regulator should also play an important role as a provider. the state in this case the government must be a counterweight to the various interests of society. economic facts of the picture exist because the folklore is a potential commodity to be the mainstay of the region so it can play a role in the regional income. because of its long-standing and unknown creator make 29 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 folklor not terinventarisir well. so that the risk is misused. community support is indispensable because in the economic aspect, a community that still cares, maintains and conserves in order to benefit from its utilization. social facts in folklore have a dominant meaning to the existence of the work, because folklore can be an identity for a certain area (city branding). folklor mostly became one of the mentions in the name of certain areas such as, “gudeg city” 5 in yogyakarta. the importance of social facts should make it a boost for legislators to support by making appropriate rules. local folklore communities both direct and caring actors have an important role in folklore protection. the existence of such communities can not be excluded in the protection of folklore. as written in the general description of folklore area, folklore areas have been dead, growing and living. therefore, the existence of folklore should be an urgent matter for protection by regulation of sui generis intellectual property rights. regional foklore protection strategy strategy for protection of foklore by positive law article 38 paragraph (1) of law number 28 of 2014 on copyright, states that the copyright on traditional cultural expression is held by the state. furthermore, article 38 paragraph (2) of copyrights law describes the obligation of the state as the owner of traditional cultural expression, that is, the state shall inventory, preserve and maintain traditional cultural expression as referred to in paragraph (1). the designation of traditional cultural expression is also discussed in the 38 paragraph (3) of copyrights law, namely the use of traditional cultural expression as referred to in paragraph (1) should pay attention to the living values in the carrier society. implementation of local government as regulated by law number 32 of 2004 as amended by law number 23 of 2014 on regional government. as for the matters of the central government is the obligatory government affairs and government affairs of choice, which as provided for in article 12 paragraph (1) to (3) of regional government law. article 12 (1) of regional government law discusses compulsory governmental affairs concerning basic services including: education, health, public works and spatial arrangement, public housing and settlement areas, peace, public order and the protection of the people; and social. article 12 paragraph (2) of regional government law discusses the obligatory government affairs that are not related to the basic service, namely: labor, women’s empowerment and protection of children, food, land, environment, population administration and civil registration, community and village empowerment, population control and family planning, 5 gudeg is one of the typical culinary from yogyakarta, indonesia, where its existence becomes one of the brand from yogyakarta. 30 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang auria patria dilaga jils 2 (1) may 2017, 25-36 http://journal.unnes.ac.id/sju/index.php/jils communications, communication and informatics, cooperatives, small and medium enterprises, investment, youth and sports, statistics, coding, culture, libraries and archives. article 12 paragraph (3) of regional government law discusses preferred government affairs, namely: marine and fisheries, tourism, agriculture, forestry, energy and mineral resources, trade, industry and transmigration. culture and community empowerment in article 12 paragraph (2) of regional government law recognizes the existence of protection and management of folklore at the regional level. with the regulation in the positive law should the steps of folklore protection can be done properly at the level of local government. regional folklore protection strategy defensively protecting state assets is a mandatory thing to do in order to maintain wholeness. because the state assets are the wealth of the country. the asset referred to in this study is folklore, as it has been known that folklore has long existed and is contained in legislation. the state has the right, meaning that all indonesian people also have the right to the work of copyrighted folklore. however, is it proportional to the portion and its place? of course not, the people who take the economic benefit of folklore's work is a mistake. the state is only a facilitator to ensure certainty, there should be a special recording of various sources dividing the folklore from each region. thus created an integrated system. the creativity of “indonesians” characterized by ethnic, environmental, topography and religiosity diversity has been known for a long time, even abroad with proven in october 2009 unesco has recognized the art of batik as one of traditional knowledge products as a genuine common heritage of indonesia, after previously unesco acknowledged keris and wayang as “belonging to indonesia”. the product of this creativity also includes a sustainable folklor because it is taught from generation to generation until now. folklor can almost be related to various aspects of intellectual property rights. folklor owned indonesia has the potential to become a material wealth when it has been manifested in the form of products that have a distinctive design. in the perspective of intellectual property law, this potential is a material right that belongs to the nature of intellectual property rights. 31 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 politcs of law of foklore protection in the perspective of regional autonomy politics of law and the implementation of foklore protection in indonesia the urgency of folklore protection can be seen from various critical perspectives. as one point of view, in anthropological view, folklore is a work that has magical appeal and has a special order and has a moral message in it. for that three things to consider in building protection against folklore, namely: a. their cultural sustainability b. the existence of a sustainable system; and c. transmit their culture to the next generation expressions of folklore or traditional cultural expressions are actually lively, evolving and form part of the lives of indigenous communities. 6 the statement states that folklore lives, evolves from certain parts of the community or customary communities. the allegation is entirely correct, for that the need for awareness to prevent theft of folklore work. in order to prevent the operation of flawed laws, the theory of lawfulness (rechtsgelding) which arranged hierarchically, starting from legal enforcement of the law based on philosophical, sociological and juridical validity, is seen as a central principle for legislation on folklore protection at all levels. it is necessary to make changes to the existing protection because it is considered that the existing regulations are not sufficient to provide protection especially in the implementation or technical level. for that deconstruction of protection offered in this research is with the legal politics of harmonizing the hierarchy of legislation with the purpose of having a special state with folklore protection. in technical terms the existence of a hierarchy can make it necessary for the rules below to carry out the policy as it is based on the need and awareness of the importance of protection against folklore. the establishment of laws and regulations, one of which required the legal principle understood as the normative basis. the legal principle requires a juridical form to be a juridical rule. in this case the legal principle serves as a guide of the legislators in the process of forming the law. the guidance takes place by making itself the basis for the positive law that will be made, as well as the impetus for the movement of the mind in formulating the formulation or terms of the chapter in a laws and regulations. 6 kuek chee ying. “protection of expressions of folklore/traditional cultural expressions: to what extent is copyright law the solution?”, journal of malaysian and comparative law, volume 2, 2005, retrieved online from http://www.commonlii.org/my/journals/jmcl/2005/2.html (12 november 2014). http://www.commonlii.org/my/journals/jmcl/2005/2.html 32 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang auria patria dilaga jils 2 (1) may 2017, 25-36 http://journal.unnes.ac.id/sju/index.php/jils the legal principles embodied in laws and regulations can be seen as a form of legal politics carried out in the process of formulating legislation. the political meaning and function for legal protection against folklore is as follows: 1. political law must achieve the goal of law and the goal of the state. 2. political law as a benchmark and signs, if a legal rule established can not be accountable to justice. politics of law in the protection of folklore in its implementation process requires the legal principle to establish a law. the legal principle is derived from legal or legal objectives, the need for new states and conscious weaknesses. for that reason the existence of legal principle is seen as a form of substance of a rule because the position of legal principle as an impulse to formulate legislation. the legal principle for protection against traditional folklore is as follows: 7 a. principle of protection b. the principle of social justice c. utilization principle d. the godhead e. the principle of equal rights the south african country for the protection of the folkore done by interpreting widely the customary law of their country. so it can create a sui generis protection. in addition, in india the protection of folklore resides in communities of various tribes. although in india has established modern institutions but the life and traditions of tribal communities remain intact and nourished. some folklores from india that we know emerge and make a profit. as in the movie, the tradition of certain ceremonies, celebratory ceremonies, dances, songs and other things that show their culture in some films. the provisions of folklore protection in india are also contained in the constitution and on its intellectual property rights law. 8 in terms of its protection, india uses classification methods to inventory works of copyright and folklore and is recognized by other countries. politics of law to the folklore protection by local government politics of law is operationally defined as academic concepts and approaches in understanding legal issues, how goals are achieved through review of legal substance and effective functioning of its institutions. on the other hand, the effectiveness of the law can be seen about how far the work of law is in accordance with its objectives. there are many different perceptions 7 ahmad ubbe et.al, pengkajian hukum tentang perlindungan hukum kebudayaan daerah, badan pembidaan hukum nasional kementrian hukum dan hak asasi manusia republik indonesia, 2011, pp. 21-26. 8 kholis roisah. op cit. p. 407. 33 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 about the definition of legal politics by experts. below are some of the opinions of experts on legal politics. the republic of indonesia is a legal state (droit constitutionel), then 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. therefore when a state institution will be established it is obligatory to form its legal basis first so that the established state institutions have clear authority limits. of course this is to limit or avoid overlapping power between state institutions. regional autonomy is also intended to provide a direct and targeted policy with the principle of separation of power. the state or in this case the central government also do not loose their hands on the existence of local government precisely the coordination of stability is done in order to achieve ideal government. intellectual property rights is classified as an intangible assets object. object is defined as everything that can be made object of property rights. as an object, the properties of material rights are also attached to intellectual property rights. one of them is transferable to another party. some basic theories of intellectual property rights protection proposed by robert c. sherwood, there are five basic theories of intellectual property rights protection, namely: 9 reward theory, recovery theory, incentive theory, risk theory, economic growth stimulus theory. folklore is closely related to indigenous peoples because the creation of literary and artistic works such as legends, dances, traditional ceremonies and so forth is a legacy between generations of a community of indigenous peoples. the recognition of those rights is governed by the united nations declaration on the rights of indigenous peoples which says that indigenous peoples have the right to renew, use, develop and inherit the future generations of history, language, oral tradition, philosophy, literature, and to signify and use their own names for communities, places and people. not only in the 1945 constitution there is a regulation on the folklore, but also in article 23 paragraph (2) of law number 18 of 2002 on national system, research, development and application of science and technology. the article states the following: “the government guarantees the protection of local knowledge and wisdom, the indigenous cultural values of the community, as well as the biological and nonhuman biodiversity of indonesia”. the law does claim to protect the culture but is not explained about the definition and limitations of what is termed as culture and get proper protection. cultural heritage mentioned above is also the object of the tourism industry in indonesia which in law no. 09 of 1990 on tourism scope of museums, ancient relics, historical relics, cultural arts, agro-tourism, tourist 9 mengapa hki perlu dilindungi? access from https://www.academia.edu 21 october 2014, 08:54. https://www.academia.edu/ 34 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang auria patria dilaga jils 2 (1) may 2017, 25-36 http://journal.unnes.ac.id/sju/index.php/jils tirta (water) tourism, buru (hunting) tourism, natural adventure tourism, recreational parks, and entertainment venues that are only a tourism sector and it has also been able to provide multiplier effects (multiplier effect) on improving the welfare of the community, either directly or indirectly. the existence of folklore is identical with the condition of a particular area and becomes a city branding of the area so as to bring economic benefits for the region that exist folklore. maintaining the preservation of folklore can also have an effect on the economic, social and political aspects. it cannot be separated from professional and proportional law enforcement. the effectiveness or absence of a rule of law depends on how law enforcement is promoted. as said b.m. traverne who states “give me a judge, prosecutor, police and good advocate, then i will fight crime though without a law”. traverne’s statement is not ridiculous, if more complex analysis is done. the state of indonesia has many regulations, both containing elements of punishment or administrative sanction is nothing more than paper. as in the copyrights act, since birth was mandated by forming the implementing rules, but not formed then there have been many disputes against folklore many are questioning because of the legal basis that does not exist (rechtsvacuum). the draft law on protection and utilization intellectual property of traditional knowledge and cultural expression tradition is regarded as the ideal product with its regulation of protection with grtkf. for countries that use the copyright regime as a folklore protection framework it should follow the concept of rules that exist in the copyright regime whereas some countries that are more suited to the sui generis regime are more likely to believe that under certain circumstances, the copyright regime cannot be used as a concept protection of a particular creation, such as the principle of communality that is not much explored in the copyright regime. hans kelsen introduced the pure theory of law, which, in reaction to the assertion that law has been contaminated by political ideology and morality on the one hand, has been reduced by science and modernization / industrialization on the other. 10 kelsen found that these two reducers have weakened the law. therefore, kelsen proposes a pure form of legal theory that seeks to alienate the forms of reduction of the law that distances the law from political and morality, at which time law has become a political tool. the perspective of regional autonomy arises in some written legal arrangements in indonesia, which should be implemented and in the dynamic aspect should the actions in the framework of protection against folklore be governed by law (written rules). the lack of folklore protection lies in the dynamic legal aspects of providing regulation that technically to protect folklore. the need for protection arrangements is not only the rule of conduct but also the legal political direction of the policy being made to be adjusted. 10 ibid, pp. 15-18. 35 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 protection against folklore is an ideal way of doing sprightful and targeted protection. the area where the folklore is born and grows and is sustainable, so that the area better understand the existence of folklore. once the existence is known from the region can be an organization or body formed by local government or involve from the community in the area to make an inventory on the existence of folklore is then included in the list of folklore protection nationally. it is certainly not difficult to understand the obligations of the constitutional order. conclusions the results of research and then conducted the discussion by analyzing using the relevant concepts and theories can be obtained conclusion as, folklore needs to be protected in the perspective of regional autonomy, because folklore is one of the property owned by the state, therefore it can be referred to as an asset of the republic of indonesia, an of course the obligation to maintain assets is the obligation of the state sebegaimana keep the unity of the unitary state of the republic of indonesia. folklore exists because there are behaviors that are an integral part of the life of the ancient people who have special values possessed by the people of a particular region. the area is where the folklore is born and grows and is sustainable, so that the area better understands the existence of folklore. political protection of folklore in the perspective of regional autonomy, are: first, legal politics to align the hierarchy of legislation with the purpose of having a special state with folklore protection, second implement the provision of article 38 paragraph (2) of law number 28 of 2014 regarding copyright, which is to inventory, maintain and maintain folklor which is adjusted with the perspective of regional autonomy, third, making guidelines on the implementation of folklore protection, and the last, the folklore protection strategy can be positive and defensive. what is meant by positive is to make regulations related to folklore and defensive protection is to conduct an inventory, support community or community who care and maintain folklore. bibliography endraswara, suwardi. 2008 metodologi penelitian folklore konsep, teori dan aplikasi. jakarta: media pressindo. sunarno, siswanto. 2009. hukum pemerintahan daerah di indonesia. jakarta: sinar grafika. asshiddiqie, jimly dan m. ali safa’at. 2012. teori hans kelsen tentang hukum. jakarta: konstitusi press. 36 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang auria patria dilaga jils 2 (1) may 2017, 25-36 http://journal.unnes.ac.id/sju/index.php/jils marzuki, peter mahmud. 2005. penelitian hukum,. jakarta: kencana prenada media. ubbe, ahmad et.al., 2011. pengkajian hukum tentang perlindungan hukum kebudayaan daerah. badan pembidaan hukum nasional kementrian hukum dan hak asasi manusia republik indonesia kholis roisah, “membangun prinsip-prinsip perlindungan hukum hak kekayaan intelektual berbasis kearifan lokal”. dissertation. doctoral program, faculty of law universitas diponegoro, semarang, 2013. “mengapa hki perlu dilindungi?” accessed from https://www.academia.edu, on 21 oktober 2014 kuek chee ying. “protection of expressions of folklore/traditional cultural expressions: to what extent is copyright law the solution?” journal of malaysian and comparative law, access online from, http://www.commonlii.org/my/journals/jmcl/2005/2.html (12 november 2014). laws and regulations the 1945 constitution of republic indonesia law no. 19 of 2002 concerning to copyright as amended by law no. 28 of 2014 on copyright. law no. 32 of 2004 as amended by law no. 23 of 2014 on regional government (regional government law). law no. 09 of 1990 on tourism. the model provisions for national law on protection of the expressions of folklore against illicit exploitation and other prejudical actions 1982 https://www.academia.edu/ http://www.commonlii.org/my/journals/jmcl/2005/2.html 3 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. 3-14 issn 2548-1584 e-issn 2548-1592 rights of police action by the financial audit board of the republic of indonesia aninditya eka bintari 1 aninditya eka bintari state prosecutor of south minahasa, indonesia  aninditya.xk@gmail.com article info abstract submitted on august 2016 approved on january 2017 published on may 2017 this study aims to describe the actions of the police conducted by the financial audit board of the republic of indonesia (bpk ri) in the perspective of human rights in the context of ethics code and the fulfillment of rights. this research is normative law research, hence secondary data source or library data source used as main source in this research. the research method used in this research is qualitative analysis, which is descriptive by presenting the data in detail and make interpretations to answer the formulation of research problems. the conclusion of the research result is police action stipulated in article 24 of law no. 15 of 2006 on indonesian financial audit board which contains the police action conducted by bpk to examine a case conducted by order of the attorney general after first obtaining written approval from the president. what is meant by police action (explanation of article 24 of law no. 15 of 2006) is a summons in connection with criminal acts, arrest, search and seizure. this police action is further regulated in bpk ri regulation no. 2 of 2008 concerning to the procedure of sealing in implementation of inspection and regulation of bpk ri no.3 of 2008 concerning procedure of calling and request of information by bpk. keywords: police action, state loses, indonesian financial audit board 1 s.h., universitas negeri semarang (unnes), seramrang state university, indonesia. m.h. (master of laws) from universitas gadjah mada (ugm). i would like to deliver the great thankfulness to the state prosecutor’s office of republic indonesia especially office of south minahasa, and also to editorial board of journal of indonesian legal studies faculty of law, universitas negeri semarang. mailto:aninditya.xk@gmail.com 4 aninditya eka bintari jils 2 (1) may 2017, 3-14 introduction state finance is all rights and obligations of the state that can be assessed with money, as well as everything in the form of money or in the form of goods that can be owned by the state related to the implementation of these rights and obligations. the foundation of state finance law 2 is article 23, 23a, 23b, 23d, 23d of the 1945 constitution; law no. 17 year 2003 on state finance; law number 15 of 2004 on audit of state financial management and responsibility; law no. 33 of 2004 concerning the central and regional financial balance; and general terms of taxation. from the legal basis mentioned above there are two main elements, namely: (1) elements of priority, namely that the financial implementation carried out every budget year (usually on 1 january to 31 december); and (2) the element of juridity, namely that the realization of state finances should be established by law or by local regulation. in the conduct of state financial affairs, it will not be possible to escape the so-called surveillance. supervision is organized to check or assess whether the activities of state administration in accordance with the established provisions and avoid the practice of misuse. the 1945 constitution legitimizes the amendment of the audit function of the indonesian financial audit board (bpk) which is not only aimed at the financial responsibility of the state, but also the management of state finances. with its function as an auditor of state financial responsibility, bpk is placed parallel to its position as a state institution. as a state agency that checks the state of financial responsibility, the bpk as an institution directly supervise and inspect the state financial policies (fiscal policy audit) by the government. 3 in article 23e of the 1945 constitution governing the supreme audit agency, “to examine the management and accountability of state finances should be existed an audit board held a free and independent”. bpk was established for the purpose of examining the management and responsibility of state finances. whereas state finance is one of the main elements in the implementation of state government and has a very important benefit in realizing the state’s goal to achieve a just, prosperous and prosperous society as mandated in the preamble of the 1945 constitution. that for the achievement of state objectives, the management and financial responsibility of the state requires a free, independent and professional examiner institution to create a clean government free of corrupt, collusion and nepotism practices. so in carrying out its authority bpk is regulated independently in the law no. 15 of 2006 on the indonesian 2 arif hidayat, 2009, hukum administrasi negara lanjut, semarang: fh unnes, p.29. 3 arifin p. soeria, 2009, keuangan negara dalam perspektif hukum: teori, praktik, dan kritik, jakarta: pt rajawali pers, p. 222. 5 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 financial audit board considering that the law on the old bpk is not in accordance with the development of the existing era. whereas the apbn is the government’s annual financial plan that will be implemented to achieve the state’s objectives. in achieving the country’s objectives the application of the apbn itself is very risky with the existence of corruption, collusion, and nepotism (kkn) practices. this case, bpk based on the prevailing laws and regulations such as article 23e of the 1945 constitution and law no. 15 of 2006 regarding bpk explain that the indonesian financial audit board has the authority to audit the management and responsibility on state finances. in the context of exercising its authority, bpk may carry out an act called „police action‟ which is further stipulated in article 24 of law number 15 of 2006 concerning bpk. furthermore, in exercising the authority in the form of „police action‟, the indonesian financial audit board must obtain orders from the general prosecutor after obtaining written approval from the president, and for the urgent circumstances the process is considered to be very long and inefficient on time so that bpk cannot perform a quick action considering that bpk and the attorney and the president are different agencies. based on the above description of the background, then there are two issues to be discussed, first, what is a „police action‟ in the authority of indonesian financial audit board, and second, what is the procedure implementation of the „police action‟ by the indonesian financial audit board? general description of financial audit board of the republic of indonesia the supreme audit agency 4 is a free and independent state institution tasked with auditing state financial management. the position of bpk is strengthened constitutionally, that is, by publishing the articles specifically regulating the bpk in the 1945 constitution after the amendment. the arrangement of this institution in the 1945 constitution, is placed in chapter viii a, article 23e up to article 23g. in article 23e paragraph (1) of the 1945 constitution which stipulates that "to examine the management and accountability of state finances audit board held a free and independent". free 5 shall mean any action relating to the management and responsibility of state finances by not violating the provisions of applicable laws and regulations. meanwhile, independent means 4 martitah 2008, hukum tata negara, semarang: pkk unnes, p.85. 5 muhamad djafar, 2011, hukum keuangan negara, jakarta: pt rajagrafindo persada, pp. 81-82. 6 aninditya eka bintari jils 2 (1) may 2017, 3-14 to audit the management and financial responsibility of the state should not be influenced by anyone, including the executive, legislative judicative even from within the financial audit agency itself. as a state institution conducting state audits and responsibilities, the supreme audit agency has a detailed duty in: 6 a. examination of management and accountability of state finances covering: a) addressed to the central government, regional government, other state institutions, bank indonesia, state-owned enterprises, regional-owned enterprises, public service bodies, and institutions or other bodies managing state finances; b) conducted in accordance with the law on audit of management and responsibility of state finances; c) financial audits, performance checks, and checks for specific purposes; d) in the event that an inspection is conducted by a public accountant under the provisions of law, the report of inspection result must be submitted to the supreme audit board and published; e) discussion of examination findings with the object being examined in accordance with state financial auditing standards. b. submission of audit results on the management and responsibility of state finances, consisting of: a) to the people’s legislative assembly, the regional representative council, and the regional people’s legislative assembly in accordance with their authority; b) conducted according to the respective agreed procedures; c) the people’s legislative assembly, the regional house of representatives, and the regional people's legislative assembly shall follow up in accordance with the rules of procedure of each representative institution; d) to the regional people’s legislative assembly shall be conducted by a member of the state audit board or appointed official; e) has been submitted to the house of representatives, regional representatives council, and the regional people’s legislative assembly shall be declared open to the public. c. follow-up of audit result of management and responsibility of state finance, consist of: a) for the purposes of the follow up of audit results, the supreme audit board shall also submit written examination results to the president, governor, regent/mayor in accordance with their authority; b) the follow up of the examination result of the supreme audit board is notified in writing by the president, governor, regent/mayor to the state audit board; 6 ibid., pp.81-85. 7 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 c) if the examination is found in the criminal element, the financial audit board reports to the competent authority in accordance with the applicable legislation, within one month of the identification of the criminal element; d) the report shall be the basis of investigation by the competent investigating authority in accordance with applicable laws and regulations; e) monitor the implementation of the follow-up results of the examination conducted by the president, governors, regents/mayors. to sustain or support the task, the supreme audit board has authority in order to realize the implementation of people’s sovereignty in the field of state financial management and responsibility. the authority of the supreme audit board is as follows: 1. determining the object of examination, planning and carrying out the examination, determining the time and method of examination as well as preparing and presenting inspection reports; 2. request information and / or documents required by everyone, central government organizational unit, regional government, other state institutions, bank indonesia, state-owned enterprises, regional-owned enterprises, and other institutions or bodies managing state finances; 3. conduct checks in the depository of state money and property, bookkeeping and administration of state finances, as well as examination of calculations, papers, evidences, checking accounts, accounts and other lists relating to the management of state finances; 4. establish the type of documents, data, and information on the management and accountability of state finances shall be submitted to the supreme audit board; 5. establish state financial auditing standards after consultation with the central government, local governments that must be used in audits of management and accountability of state finances; 6. to stipulate the code of conduct of audit of management and accountability of state finances; 7. using the code of conduct of audits of state financial management and accountability; 8. fostering the functional position of the examiner; 9. taking account of government accounting standards; 10. giving consideration to the draft of the internal control system of the central government or local governments, before being passed by the central government or local governments. state losses the management of state finances (article 1 (8) of law no. 15 of 2006) is the overall activity of the state financial management official in 8 aninditya eka bintari jils 2 (1) may 2017, 3-14 accordance with its position and authority, which includes planning, implementation, monitoring and accountability. in the event of any irregularities or violations of the management and responsibility of the state finances, the financial audit board is authorized to perform acts justified by the state finance law. acts of deviation committed by a particular person or person will cause a state loss that leads to a criminal act. the state losses (article 1 (15) of law no. 17 of 2006) are the lack of money, securities and goods, which are real and inevitable in number as a result of unlawful acts either intentionally or negligently. state losses contain a broad meaning so it is very easy to understand and enforced in case of violations in the management of state finances. state losses should not be estimated as intended but must be ascertained the amount suffered by the state at that time, it is intended that there is a legal certainty on the financial state of the country experiencing deficit in order to be held responsible for the state losses. the factors that cause the state losses are the improper implementation of policies, enriching themselves, others, or corporations. when the factors causing the loss of the state are reviewed in the legal aspects, the state losses are in the public domain, such as state finance law and criminal law. both types of law have different substances but remain at the same goal of placing the state finances in a normal position. it is based that the state's finance is a carrying capacity in order to achieve the state’s goals. state losses and compensation claims constitute a substance in state finance law involving state financial managers with the competent authorities to claim damages. when either party is unable to perform its functions, there are constraints to the enforcement of state finance law. in the case of resolving state losses 7 , bpk is authorized to assess and/or determine the amount of state losses resulting from unlawful acts, whether intentional or negligent by treasurers, managers of state-owned enterprises, and monitoring the settlement of state/regional compensation payments to non-treasury officials and other officials, the implementation of the imposition of state/regional compensation to the treasurer, manager of state-owned enterprises and other institutions or bodies managing the established state finances based on a court decision having a permanent legal power to be notified in writing to the dpr, dpd and dprd in accordance with their authority. while the related criminal law in the state losses because the act was done to enrich themselves, other people or corporations so as to cause financial losses to the state or even the economy of the country. it is based that the financial loss of the state or the state economy is one element in the criminal act of corruption. in law no. 31 of 1999 jo. law no. 20 of 2001 concerning to eradication of corruption does not mention explicitly the term of state loss 7 kaka alvarez, 2014, buku lengkap lembaga-lembaga negara, yogyakarta: saufa, p. 95 9 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 but in this law there is the term ‘harm the state finances’. 8 the provisions on state financial harm contained in article 2 and article 3. article 2 (1) of the act ptpk states that: “any person who acts unlawfully enrich themselves or another person or a corporation that could harm the state finance or state economy shall be punished with imprisonment for life or imprisonment of at least 4 (four) years and a maximum of 20 (twenty) years and a fine of at least rp200,000,000 and most rp1,000,000,000”. article 3 uuptpk states that: “any person who with the intention benefited him/herself or another person or corporation, abuse of power, opportunities or facilities available to him because of the position or the position or the means available to him because of the position or positions that can be harmed state finances or economy of the country, shall be punished with imprisonment for life or imprisonment for a minimum of one year and a maximum of 20 (twenty) years and/or a fine of 50,000,000, and most rp1,000,000,000”. in exercising its authority in relation to the indication of an act against the law that is the act that harms the state's finances, the bpk has an authority in the form of police action, as regulated in article 24 of law no. 15 of 2006 which states that: “the actions of the police against members of the bpk to the examination of a case is done with the command attorney general after prior written approval of president”. this police action is further stipulated in the bpk regulation. police action by the state financial audit board one of the actions that may be performed by the state financial audit board is the police action. police action is regulated in article 24 of law no. 15 of 2006 concerning to bpk which contains the police action conducted by bpk to examine a case conducted by order of the attorney general after first obtaining written approval from the president. what is meant by police action (explanation of article 24 of law no. 15 of 2006) is a summons in connection with criminal acts, arrest, search and seizure. this police action is further regulated in bpk-ri regulation no. 2 of 2008 8 abdul halim, 2011, pengelolaan keuangan negara-daerah: hukum, kerugian negara, dan badan pemeriksa keuangan, yogyakarta: upp stim ykpn, p. 24. 10 aninditya eka bintari jils 2 (1) may 2017, 3-14 concerning procedure of sealing in implementation of inspection and regulation of bpk-ri no.3 of 2008 concerning procedure of calling and request of information by bpk. bpk-ri regulation no. 2 of 2008 on procedure of sealing in implementation of inspection in bpk regulation no. 2 of 2008 regulates the procedure of sealing in the conduct of inspection. what is meant by examination is an independent, objective, and professional identification, analysis and evaluation process based on inspection standards, to assess the truth, accuracy, credibility and reliability of information on the management and accountability of state finances. the inspection process is carried out by an auditor, the examiner is a person who performs the task of auditing the management and financial responsibility of the state for and on behalf of bpk. in the examination, the examiner performs a sweeping action performed on the depository of money, goods, and/or state financial management documents that are in the control and/or responsibility of the party examined or other parties related to the examination. the sealing shall only be conducted in the event that the examination shall be postponed if the party who holds and / or is responsible for money, goods, and/or state financial management documents is not present at the time of the hearing, natural disaster or limited time. sealing is done at the most 2 x 24 hours by paying attention to the smooth implementation of the work/service of the place being examined. the procedure of sealing is regulated by article 4 of bpk regulation no. 2 of 2008, as follows: 1. the sealing is done by locking and/or placing a security mark, followed by attaching a seal paper to the storage of money, goods, and/or state finance management documents; 2. the seal paper is signed by 2 (two) examiners and 2 (two) witnesses from the parties examined in appendix i (sealing form). 3. the sealing shall be conducted by bringing the minutes of sealing in 2 (two) copies signed by the examiner, the party responsible/responsible for money, goods and / or documents, and 2 (two) witnesses from the parties examined in appendix ii (minutes of sealing). 4. in the event that the inspected party refuses or obstructs the sealing, the examiner shall remain sealed in the presence of the local government apparatus and, if necessary, request the assistance of the police. what is meant by local government apparatus is the village head/village head and/or device. 5. reasons for refusing or blocking sealing are recorded in the minutes of sealing. 11 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 6. in the event that the inspected party refuses to sign the minutes of sealing, the denial is recorded in the minutes of sealing. 7. attachment i and attachment ii as an integral part of this regulation. the opening of the seal is performed by the examiner by removing the seal paper followed by unlocking and/or safety marks and proceeding by making minutes of opening of seals in duplicate signed by the examiner, the party responsible/responsible for money, goods and/or documents, and 2 (two) witnesses according to appendix iii (minutes of opening of seals). if sealing is done for the reason that the sealing is postponed because the party who controls or is responsible for money, goods, and/or documents and when 2 x 24 hours has been exceeded, the controlling and/or responsible or money, goods and/or documents are not notified and/or unknown, the seal is opened to continue the examination. in the event that there is no notice and / or unknown presence of the controlling and/or responsible party or money, goods, and/or documents, then the party is considered to know the inspection. opening of the depositary of money, goods, and/or documents by the direct superior, the head of the entity and/or official appointed and witnessed by 2 (two) witnesses. in the case of direct supervisor, the management of the entity and/or the appointed official refuses to open the depository of money, goods and/or documents, then the examiner shall prepare the minutes of rejection of inspection in accordance with the applicable provisions, subsequently reported to the competent authorities. in the event that the seal paper is damaged and / or in any other way the sealing purpose is thwarted, the examiner shall prepare the minutes of destruction of the seal in 2 (two) copies according to annex iv (minutes of seal destruction) and report to the police to follow up in accordance with applicable provisions bpk-ri regulation no.3 of 2008 on procedures for summoning and requesting information by bpk the supreme audit board is authorized to carry out police action, one of the police actions that can be performed by bpk is the invitation and inquiry. for further regulation on police actions in the form of summoning and requesting information shall be regulated in bpk-ri regulation no. 3 of 2008 concerning procedures for summoning and requesting information by bpk. a) calling calling (article 1 sub-article 3 of bpk regulation no. 3 of 2008) is the last act performed by bpk to present a person after efforts in order to obtain, complete, and/or believe that the information required in connection with the examination is unsuccessful. calling takes place on weekdays. 12 aninditya eka bintari jils 2 (1) may 2017, 3-14 b) request of statement requests for information addressed to a person referred to in this bpk rule. a person (article 1 sub-article 4 of bpk regulation no.3 of 2008) is an individual or legal entity that is responsible or related in the conduct of work financed by the state finances. a person who has been legally called must attend and cannot be represented. a call to a request for information shall be made on the working day of the bpk office specified in the summons. request for information may be made by the chairman, vice chairperson, member of bpk, and appointed officer. the result of the inquiry is set forth in the minutes of inquiry requests and signed by the person providing the information and the person requesting the information. in the event that a person being questioned refuses to sign a notice of inquiry, the refusal shall be recorded in a notice of inquiry with reference to the reason. a person who had or fulfilled the call but refused to give any information, signed the minutes of rejection of the description and the bpk reported to the authorities direct police action by bpk bpk is entitled to take police action if it is indicated that an act is committed to enrich itself, others, or corporation to cause loss to the state. it is based that the financial loss of the state is one element in the criminal act of corruption as referred to in law no. 31 of 1999 jo. law no. 20 of 2001 on the eradication of corruption. however, in the event of urgent bpk may take direct police action without waiting for orders from the attorney general. members of bpk may be subject to police action without waiting for orders from the prosecutor general or written consent of the president, if: to be caught red-handed or suspected of committing a criminal offense punishable by capital punishment. this police action within 1 x 24 hours shall report to the prosecutor-general who is obligated to notify the detention to the president, the people’s legislative assembly and the supreme audit board conclusions the supreme audit board is a free and independent state institution tasked with auditing state financial management. the position of bpk is strengthened constitutionally, that is, by publishing the articles specifically regulating the bpk in the 1945 constitution after the amendment. the arrangement of this institution in the 1945 constitution, is placed in chapter viiia article 23e up to article 23g. the management of state finances (article 1 (8) of law no. 15 of 2006) is the overall activity of the state financial management official in accordance with its position and authority, which includes planning, implementation, 13 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 monitoring and accountability. the factors that cause the state losses are the improper implementation of policies, enriching themselves, others, or corporations. when the factors causing the loss of the state are reviewed in the legal aspect, the state losses are in the public domain, such as state finance law and criminal law. both types of law have different substances but remain at the same goal of placing the state finances in a normal position. this case was related to the criminal law in the context of state losses because the act was done to enrich themselves, others or corporations thereby causing financial losses to the state or even the economy of the country. one of the actions that the supreme audit board may take is the police action. police action is regulated in article 24 of law no. 15 of 2006 concerning to bpk which contains the police action conducted by bpk to examine a case conducted by order of the attorney general after first obtaining written approval from the president. further regulation on police action is regulated in regulation of bpk-ri no. 2 of 2008 concerning procedure of sealing in implementation of inspection and regulation of bpk-ri no. 3 of 2008 concerning procedure of calling and request of information by bpk. suggestion for this case, that in implementing the action of the bpk police must observe the prevailing laws and regulations so as not to exceed the authority granted by the prevailing laws and regulations. bibliography abdul halim, 2011, pengelolaan keuangan negara-daerah: hukum, kerugian negara, dan badan pemeriksa keuangan, yogyakarta: upp stim ykpn. adrian sutedi, 2012, hukum keuangan negara, jakarta: sinar grafika. arif hidayat, 2009, hukum administrasi negara lanjut, semarang: fh unnes. arifin p. soeria, 2009, keuangan negara dalam perspektif hukum: teori, praktik, dan kritik, jakarta: pt rajawali pers. jimly asshiddiqie, 2013, komentar atas undang-undang dasar negara republik indonesia tahun 1945, jakarta: sinar grafika. kaka alvarez, 2014, buku lengkap lembaga-lembaga negara, yogyakarta: saufa. martitah 2008, hukum tata negara, semarang: pkk unnes muhamad djafar, 2011, hukum keuangan negara, jakarta: pt rajagrafindo persada. 14 aninditya eka bintari jils 2 (1) may 2017, 3-14 laws and regulation indonesian constitution of 1945 amendment iv law number 17 of 2003 concerning to state finances law number 1 of 2004 concerning to country fundraising law number 15 of 2006 concerning to the audit board regulation of bpk-ri number 2 of 2008 concerning to procedure of sealing in implementation of inspection bpk regulation no. 3 of 2008 on procedures dialing and inquiries by the bpk 13 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang journal of indonesian legal studies vol 1 issue 01, 2016 http://journal.unnes.ac.id/sju/index.php/jils volume 1 issue 01 november 2016 jils 1 (1) 2016, pp. 13-34 issn 2548-1584 e-issn 2548-1592 the relationship of international human rights law with international humanitarian law in situations of international armed conflicts muhammad ikhsan lubis 1 muhammad ikhsan lubis faculty of sharia and law, islamic state university of north sumatera willien iskandar st., pasar v medan estate, medan, north sumatera, indonesia  milubis16@gmail.com article info abstract submitted on july 2016 approved on september 2016 published on november 2016 the existence between international humanitarian law and human rights law has a different feel from each other, though equally universal. as an example of mistreatment of prisoners of war committed by us occupation forces in iraq, surely all countries say it is an international crimes (war crimes). this paper would discuss concerning how the relationship the international human rights with international humanitarian law in situations of international armed conflicts. the paper argued that the relationship between human rights and humanitarian law can be distinguished but not separated. the principles of the udhr can apply to the international humanitarian law, but some of the principles of the udhr and limited humanitarian law apply in times of peace and times of armed conflict alone. argued that the gap between international humanitarian law by the human rights bridged together through the enactment of the principles of human rights and humanitarian law principles that cannot be postponed. keywords: human rights; humanitarian; armed conflict; international 1 s.h., universitas islam negeri sumatera utara, m.h., universitas gadjah mada, magister ilmuhukum (mih ugm), 2016. special thanks to mr dr. hibertus jaka triyana, s.h., m.a., ll.m. for valuable comments, and to mr ridwan arifin, the editorial board of journal of indonesian legal studies, postgraduate program faculty of law, universitasnegeri semarang for any kind of helps. mailto:milubis16@gmail.com 14 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils i (1) november 2016, 13-34 http://journal.unnes.ac.id/sju/index.php/jils introduction international humanitarian law was always close to human rights law, where both two concepts cannot be separated each other. when discussing about humanitarian law, we are also discussing concerning human rights in the context of armed conflict condition. although both international humanitarian law and international human rights law has different basic sources, but that two concepts basically stipulated the same thing, namely the protection to the people issue. den haag convention of 1907 concerning procedure of war, four geneva’s conventions of 1949 concerning to the protection of armed conflict victims, and two additional protocols of 1977: the additional protocol i of 1977 concerning to the protection of international armed conflict victims, and the additional protocol ii concerning to the protection of non-international armed conflict victims, were become sources of international humanitarian law. those all sources, basically stipulates concerning to the procedure of war, and humanitarian law guarantees that although in the bad circumstances like war, the human rights should not to be violated by any reasons. meanwhile, sources of human rights law should be based on the international bill of rights, such as universal declaration of human rights (udhr) 1945, international covenant on civil and political rights (iccpr) 1966, and two optional protocols and international covenant on economic social cultural rights (icescr) 1966. looking for that context, the existence of international humanitarian law and international human rights law has different nature from each other, though both two concepts universally same. as an example, the torture to the prisoners of war committed by the us occupation forces in iraq, surely all countries should argue that this is an international crime (war crimes). similarly the torture conducted by public officials to its own citizens to be condemned by all countries as gross violation of human rights. however, if deeply examined, actually both international humanitarian law and international human rights law has the unique linkages, where both two concepts should not be separated. the paper would like to discuss and examine concerning the international humanitarian law and international human rights law in what context that two concepts would be used as the protection to the people. human rights law the basic concept of protection to the universal human rights actually occur in world war ii that caused enormous suffering to the people so as to 15 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang journal of indonesian legal studies vol 1 issue 01, 2016 http://journal.unnes.ac.id/sju/index.php/jils encourage the need for universal order that regulates the international community to be more respect for human rights. “the idea of the international declaration of human rights appears when world war ii took place, and more stronger as the un and un charter designed. the founders of un should include the promotion of human rights in the un goals, which is then manifested in the form of declaration that states the customs of international law. 2 that comment emphasized that the universal order or regulation which accommodate the protection to the human rights was needed, because of the human rights issue was never finished to be discussed and discussing about the human rights directly means discussing about universal understanding concept. as universal in nature, human rights recognized as an international standard that across boundaries of cultures and as a system of international law applicable in the country’s society. 3 vienna declaration and program of action, june 1993 point e.83 concerning the implementation and monitoring methods stated that governments should combine (incorporate) the standards contained in international human rights instruments into national law (domestic legislation) and strengthen the various structures, national institutions, and organs of society which play a role in promoting and protecting human rights. 4 muladi stated that although human rights have a universal nature, but as in other developing countries in the implementation of human rights itself known the principle of cultural relativism, which is universally already getting recognition in the context of that principle is not contrary to the universal principles and natures of human rights. the importance to consider the cultural and historical aspect of people and nation in the implementation of human rights, as stated as follows: “the jakarta message (1992) point 8 affirmed that no country, however, should use its power to dictate its concept of democracy and human rights or impose conditionality on others.” kuala lumpur declaration of 1993 on human rights formulated by asean inter parliamentary organization (aipo), stated that: “the people of asean accept that human rights exist in a dynamic and evolving context and that each country has inherent historical experiences, and changing economic, social, political and cultural and value system which should be 2 vratislav pechota, kovenan hak sipil dan politik dalam materi training hukum dan ham bagi dosen pengajar hukum dan ham di fakultas hukum pada perguruan tinggi negeri dan swasta di indonesia, held by pusham universitas islam indonesia and university of oslo norway, yogyakarta, 22-24 september 2005 3 sonia haris short, “international human rights law: imperialist,inept and ineffective?cultural relativisme and the un convention on the rights of the child in human rights quarterly”, a comparative and international journal of the social sciences, humanities, and law, volume 25 number 1, february 2003, p.131. 4 komisi hak asasi manusia, hak asasi manusia dalam perspektif budaya, gramedia pustaka utama, jakarta, 1997, p. 81. 16 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils i (1) november 2016, 13-34 http://journal.unnes.ac.id/sju/index.php/jils taken into account.”5 bangkok declaration of 1993, also stated that: “while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norms setting, bearing in mind the significance of national and regional peculiarities and various historical, cultural and religious background.” 6 vienna convention and action program of 1993 also emphasized that: “all human rights are universal, indivisible and interdependent and interrelated while the significant of national and regional particularities and various historical, cultural and religious background must be borne in mind, it is the duty of states, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.” 7 the debate is indeed arise when discussing whether the universal declaration of human rights of 1948 (udhr) has a universal principle or not. the theory of human rights as the middle range theory in this paper because of human rights itself could be generally defined as those rights which are inherent in our nature and without which we cannot live as human beings. 8 indonesian human rights law, stated that human rights are a set of rights attached to nature and human existence as a creature of god almighty and it is his grace that must be respected, upheld and protected by the state, law, government and everyone for the respect and protection of human dignity. 9 “whereas human rights are basic rights inherent in human beings by nature, universal, and eternal as the grace of god almighty” 10 , but another perspectives, although human rights was given by god, the application of the concept of human rights itself in the context of protection of human rights was a responsibility for indonesia as a country with rechtstaat concept that upholds human rights. state responsibility under international law arising out of a violation of international law, although the national law considers an act is not an offense, however, if international law provides otherwise, the state must remain responsible. 11 in terms of responsibility to the legal norms of international human rights, state actors can no longer hide behind sovereignty to avoid responsibility to the international community as it is said hector gross espiell, that “the question of human rights is no longer the preserve of the domestic jurisdiction of states, but is now being recognized as governed by the 5 muladi, demokratisasi, hak asasi manusia, dan reformasi hukum di indonesia,the habibie center, jakarta 2002, p.56. 6 final declaration of the regional meeting for asia of the world conference on human rights which known as bangkok declaration 1993. 7 viena declaration and programme of action (june 1993) 8 united nation, human rights question and answer, new york, united nations department of public informations, 1993. 9 article 1 paragraph 1 of law no. 39 of 1999 on human rights 10 charter of indonesian human rights, introduction, second paragraph 11 f sugeng istanto, hukum internasional, universitas atmajaya yogyarakarta, p. 77. 17 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang journal of indonesian legal studies vol 1 issue 01, 2016 http://journal.unnes.ac.id/sju/index.php/jils internal law and by international law, against the which internal special law cannot be invoked.” 12 in indonesian context, law no. 39 of 1999 concerning to human rights, in part of consideration on point (d), stated that: “indonesian people as one of the members of united nations that have a moral and legal responsibility to uphold and implement the universal declaration of human rights established by the united nations, as well as other various international instruments which have been accepted by the republic of indonesia.” 13 the same thing is also contained in the explanation of law no. 26 of 2000 regarding human rights court in paragraph 4 of part i, said: “to carry out the mandate of the status mpr decree no. xvii / mpr/1998 on human rights has been established law no. 39 of 1999 on human rights. this law is a manifestation of the responsibility of the indonesian people as a member of the united nations. in addition to these, the establishment of the law on human rights also contains a mission to assume moral and legal responsibility to uphold and implement the universal declaration of human rights established by the united nations, as well as contained in the various legal instruments more set up human rights, which has been ratified or accepted by the republic of indonesia.” 14 those provision means that human rights as part of international law at the time implemented in national life issues was highly related to political, social and cultural issue. this view was reinforced by the results of historical research paper, which was then strengthened the belief that the human rights issue, not merely western thought, but it is a question of which values are associated with and underlying the indonesian independence movement. in other words, the substance and the values of human rights have deep roots, in a dialectic struggle of this nation since before independence until today. 15 12 hestor gross espiell, “humanitarian law and human rights”, on januzy symonides (editor), human rights: concept and standards, paris: unesco, 2000, p. 349 13 law no. 39 of 1999 concerning to the human rights. 14 explanation of law no. 26 of 2000 regarding human rights court. 15 adnan buyung nasution, implementasi perlindungan hak asasi manusia dan supremasi hukum, on seminar pembangunan nasional (national development seminar) vii/ denpasar bali 14-18 july 2003. 18 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils i (1) november 2016, 13-34 http://journal.unnes.ac.id/sju/index.php/jils humanitarian law the term of humanitarian law for indonesian people was uncommon know as one of branches of law. the nature of humanitarian law itself related to the war and armed conflict and it occurred in world war situations. the terms of humanitarian law, or known as international humanitarian law is applicable in armed conflict is originated from the term of laws of war, and then in its development known as the laws of armed conflict. the change from the laws of war into the laws of armed conflict is done to avoid a traumatic condition caused by war. according to shigeki miyosoki on yasin tasyrif (1990), 16 international humanitarian law is law concerning to the protection of human rights on armed conflict with some binding legal instruments. jean pictet on haryomataram (1984) emphasized that international humanitarian law in the wide sense is constitutional legal provision from, whether written or customary, ensuring respect and individual and his well-being. 17 definition of humanitarian law itself, as emphasized by gesa herzegh, formulated international humanitarian law as “part of the rules of public international law which serve as the protection of individuals in time of armed conflict. its place is beside the norm of warfare it is closely related to them but must be clearly distinguish from these its purpose and spirit being different.” 18 mochtar kusumaatmadja stated that humanitarian law is one of parts in legal science that consisted of some provisions to protect the victim in armed conflict, and its different to the laws of war that only regulate the war itself and everything related to the conduct of war itself. 19 committee of humanitarian law, department of law and legislation, concerning to the humanitarian law emphasized that this law recognized as whole principles, rules and provisions of international whether it written or not that includes martial law and human rights, aimed at ensuring respect for the dignity of the person. 20 esbjorn rosenbland distinguished between humanitarian law and the law of armed conflict, which is associated with the onset and cessation of hostilities, occupation of opponent territory, disputes party relationship with the neutral country. while the law of warfare, such as the methods and means of warfare, combatant status, protection of the sick, and combatants and civilians (non-combatants). f. sugeng istanto on masyur effendi (1994) concerning to the rosenbland argument stated that, humanitarian law is one 16 yasin tasyrif, hukum humaniter internasional, buku pegangan kuliah mahasiswa fh, undip, semarang, 1990, pp. 10-11. 17 haryomataram. 1984. hukum humaniter. jakarta, cv rajawali, p. 8 18 arlina permanasari et al. 1999. pengantar hukum humaniter. jakarta: international committe of the red cross, p. 19. 19 haryomataram, op.cit., p. 9. 20 ibid.,p. 10. 19 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang journal of indonesian legal studies vol 1 issue 01, 2016 http://journal.unnes.ac.id/sju/index.php/jils of legal provisions that part of public international law which is provide some rules conducting to human behavior on armed conflict that is based on humanitarian consideration with the aim of human protecting. 21 while the international committee of the red cross (icrc), stated that international humanitarian law as the provisions of international law contained on international treaties and costumes, which are intended to address all humanitarian problems that arise at times of international armed conflict or non-international. such provisions limit—on behalf human rights—the rights of the parties involved in the dispute for the use of weapons and methods of warfare to protect people and property affected by armed conflict. thus international humanitarian law is a set of rules or legal provisions which arise because of the habits of international or international treaties governing the procedures and methods of warfare and the protection of victims of war on armed conflicts that are international or non-international. arlina permanasari et al (1999) 22 explained that sources of international humanitarian law were consisted of some conferences, as follows: 1) the hague law the hague law is a provision of humanitarian law providing the methods and means of war. the hague law is the result of the first peace conference held in 1899 and the second peace conference held in 1907. a) the hague convention of 1899 the hague conventions of 1899 is the result of the first peace conferences in the hague (18 may-29 july 1899). the conference, which began on may 20, 1899 that lasted for two months and produce the three conventions and three declarations on july 29, 1899. the three conventions generated are: a. 1stconvention on dispute settlement of international conflict; b. 2 nd convention on the laws and customs of war on land; c. 3rdconvention on adaptation of the principles of the geneva conventions of august 22, 1864 on the law of war at sea. while three declarations produced is as follows: a. prohibit the use of bullets dum-dum (bullets packaging is not perfectly close the inside so that it can rupture and enlarged in the human body). b. the launch projectiles and material of the balloon, over a period of five years ending in 1905 is also prohibited; 21 h.a. masyhur effendi. 1994. hukum humaniter internasional dan pokok-pokok doktrin hankamrata. surabaya, usaha nasional, p. 24 22 arlina permanasari et al. 1999. op. cit., pp. 22-46. 20 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils i (1) november 2016, 13-34 http://journal.unnes.ac.id/sju/index.php/jils c. the use of projectiles that cause choking gases and toxic prohibited. b) the hague conventions of 1907 conventions are a result of the second peace conference as a continuation of the first peace conference in 1899 in the hague. conventions generated by the second peace conference at the hague resulted in a number of conventions as follows: 23 a. first convention on the peace international dispute settlement; b. second convention on limitation of using weapons in demanding debt payments coming from the civil agreement; c. third convention on how to begin a war; d. fourth convention concerning to the laws and customs of war on land attached with the hague regulations; e. fifth convention on the rights and duties of neutral states and citizens in the war on land; f. sixth convention on the status of trade ships starters enemy at the beginning of the war; g. seventh convention on the status of trade ships into warships; h. eight convention on landmines automatic placements in the sea; i. ninth convention of bombing by the navy in time of war; j. tenth convention on adaptation principles of the geneva conventions on war at sea; k. eleventh convention on certain restrictions on the use of rights of the capturing on the naval war; l. 21stconvention on the court of confiscated goods. m. 22nd convention on the rights and duties of neutral states in the war at sea. 2) the geneva convention that the hague law and geneva law are two basic rules in humanitarian law, as proposed by jean pictet that the humanitarian law has two branches, one bearing the name of geneva, and the other name of the hague. geneva law regulating the protection of victims of war and possessed four principal agreements. fourth 1949 geneva convention are: a. geneva convention for the amelioration of the condition of the wounded and sick in armed forces in the field. 23 ibid.,p. 24. 21 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang journal of indonesian legal studies vol 1 issue 01, 2016 http://journal.unnes.ac.id/sju/index.php/jils b. geneva convention for the amelioration of the condition of the wounded, sick and shipwrecked members of armed forces at sea. c. geneva convention relative to the treatment of prisoners of war. d. geneva convention relative to the protection of civilian persons in time of war. the fourth geneva convention of 1949 that in 1977 were added to the 1977 additional protocol that is referred to: a. protocol additional to the geneva convention of 12 august 1949, and relating to the protections of victims of international armed conflict (protocol i); and b. protocol additional to the geneva conventions of 12 august 1949, and relating to the protection of victims of noninternational armed conflict (protocol ii). according to sources and definitions of humanitarian law can be underlined that the objectives of humanitarian law, as follows: 1. provide protection against combatants and civilians from unnecessary suffering. 2. guarantee the fundamental human rights to their captured by enemy hands. combatants who fall into enemy hands must be protected and cared for, and deserves to be treated as prisoner of war. 3. preventing war and cruelly and without limits. masyhur effendi (1994) emphasized that the purpose of international humanitarian law is the protection of individual victims of war are emphasized in certain situations (conflict or war) and the consequences of conflict. 24 briefly, international humanitarian law was created with the aim of protecting and preserving the rights of victims and non-combatants in armed conflict. 25 as stated in the us army field manual of the law of landwarfare that the purpose of the law of war is: 26 1. protects both combatants and non-combatants from unnecessary suffering ; 2. guarantee certain rights of those who fall into enemy hands; 3. allow the return of peace; and 4. limits the power of party involved to the war. meanwhile, according to mohammed bedjaoui, humanitarian law is not intended to prohibit war, but is intended to humanize the war. 27 24 h.a. masyhur effendi, op.cit., p.65 25 fadillah agus. 1997. hukum humaniter suatu perspektif. jakarta: pusat studi hukum humaniter fakultas hukum trisakti, pp. 84-85 26 haryomataram. 1984. op.cit., p. 3 27 mohammed bedjaoui, modern wars: humanitarian challenge. a report for the independent commission on international humanitarian issues, zed books ltd., london, 1986, p. 2, stated that: “… his is precisely the concern of humanitarian law which seeks to apply a set of 22 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils i (1) november 2016, 13-34 http://journal.unnes.ac.id/sju/index.php/jils there are several goals of humanitarian law can be found in the published literature, among others, as follows: a. providing the protection against combatants and civilians from unnecessary suffering. b. guaranteeing human rights is fundamental for those who fall into enemy hands. combatants who fall into enemy hands must be protected and treated as well as the right to be treated as prisoners of war. c. preventing war and cruelly and without limits. and, the most important is the principle of humanity. 28 furthermore, humanitarian law is known, there are three main principles, namely: 29 1. principles of military interest based on this principle, the parties to the dispute justified in using force to subdue an opponent in order to achieve the goals and success of the war 2. principle of humanity based on this principle, the parties to the dispute are required to pay attention to humanity, where they were forbidden to use violence which can affect excessive injury or unnecessary suffering. 3. the principle of chivalry this principle implies that in war, honesty must take precedence. the use of tools that are not honored a wide variety of wiles and ways that are treasonous prohibited. in its application, the third principle must be implemented in a balanced manner. as said by kunz in arlina permanasari et al (1999): 30 “law of war to be accepted and to be applied in practice, must strike the correct balance on the one hand the principle of humanity and chivalry, and the other hand, military interest.” and besides of this, it is important to be considered in humanitarian law what is principle applied. the distinction principle is one of the important principles in international humanitarian law because the principle distinguish or divide the people of a country at war or are involved in armed conflict into two groups, namely combatants and civilian. combatants are among those who participate actively in hostilities, while civilians are among those who do not participate in hostilities. 31 distinguishing between combatant and civilian actually to make sure whether legal rules to humanize armed conflicts and protect the victims of situations of armed violence”. 28 frederic de mullinen, handbook on the law of the war for armed forces, icrc, geneva, 1987, p. 2, stated that: “law of warfare purposed to limit and avoid a cruel things on war, that’s why is needed a certain law to balance between military necessity in one side and humanity in other side”. 29 arlina permanasariet al. op. cit., p. 11 30 ibid. 31 ibid., p. 73. 23 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang journal of indonesian legal studies vol 1 issue 01, 2016 http://journal.unnes.ac.id/sju/index.php/jils someone participating on the hostilities or not, so someone become a target of object of violence. according to jean pictet, the principle of distinction is derived from the general principle called the principle of limitation ratione personae which states: “the civilian population and individual civilians shall enjoy general protection against danger arising from military operation”. this principle requires further elaboration into a number of principles implementation (principal of application), namely: 32 1. the parties to the dispute shall at all times distinguish between combatants and the civilian population in order to save the civilian population and civilian objects; 2. the civilian population as well as individual civilians, not may be made the object of attacks although in terms of reprisal (retaliation); 3. actions or threats of violence the primary purpose of spreading terror against civilians is prohibited; 4. the parties to the dispute must take all precautionary measures that allow to rescue residents civilian or at least to emphasize the loss or damage unintentional as small as possible; 5. only members of the armed forces that have rights to attack and resist the enemy. according to the 1949 geneva conventions, the categories of combatants are: 33 1. those who have a leader who is responsible for subordinates; 2. those who use certain signs that can be known from long distance; 3. those who carrying arms openly; and 4. those who in operation comply with the laws and customs of war. so it can be said that the distinction principle is a principle to distinguish or set on the subject of war that will be participating actively or passively in armed conflict, which resulted in them can be used as a subject or target of the war as a subject that should be protected. in addition, humanitarian law is also known in other principles, namely: 1. the principle of military necessity, that based on this principle the parties to the dispute justified in using force to subdue an opponent in order to achieve the goals and success of the war. in practice, to apply the principle of military necessity in the context of the use of violence against the opposition, an attack must pay attention to the following principles: a. the principle of proportionality, emphasized that “principle applied to limit the damage caused by military operations by requiring that the 32 ibid.,p. 74. 33 ibid., p. 81 24 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils i (1) november 2016, 13-34 http://journal.unnes.ac.id/sju/index.php/jils consequences of war means and methods used must not be disproportionate, meaning that have to be proportional to the expected military advantage.” 34 b. the principle restrictions or limitation principle, which is the principle that limits the use of tools and ways of warfare which may cause due to the extraordinary effect to the enemy. d. principle of humanity, which is according to this principle, the parties to the dispute are required to pay attention to humanity, where they were forbidden to use violence which can cause excessive injury or unnecessary suffering. therefore, this principle is often also referred to as “unnecessary suffering principle”. e. the principle of chivalry. this principle implies that in war, honesty must take precedence. the use of tools that are not honored, skullduggery and ways that are treasonous prohibited. f. the principle of distinction. based on these principles in times of war or armed conflict should be a distinction between civilians on the one hand with a combatant and between civilian objects on the one hand with the object of the military on the other. based on this principle only combatants and military objects that may be involved in the war and targeted. many experts contend that the principle of distinction is the most important principle of humanitarian law. in accordance with the various definitions mentioned above, the international humanitarian law is a law that aims to solve humanitarian problems in both international and non-international provided in international law whether written or based on international practice. in other words, it can be argued that the international humanitarian law in the broadest sense is the protection of human rights in armed conflicts, because it involves the protection of victims of war. definition and types of armed conflict definition of armed conflict, in the context of international humanitarian law was very diverse, but some experts explain that armed conflict as a certain condition, such as pictet has been said that “the term armed conflict has been used here in addition to the word war which it is tending to supplant”, and also edward kossoy stated that “as already mentioned, the term armed conflict tends to replace, at least in all relevant legal formulations, the older notion of war on purely legal consideration the replacement of war by armed conflict seem more justified and logical”, rosenbland also explained that “the 34 pietro verri, dictionary of international law of armed conflict, international committee of the red cross, geneva, 1992, p. 90. 25 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang journal of indonesian legal studies vol 1 issue 01, 2016 http://journal.unnes.ac.id/sju/index.php/jils term international armed conflict is used here in the same traditional sense as that used by oppenheim-lauterpacht in their definition of an interstate war. in their words is contention between two or more states through their armed forces, for the purposes of overpowering each other, and imposing such conditions of peace as the victor please.” 35 opinions above, cannot definitely and clearly explain about what is the armed conflict, but it can be concluded that the armed conflict is same with the war and presumably it can be said that both terms—armed conflict and war—be given the same meaning. in the 1949 geneva convention, armed conflict imagined and explained as “any difference arising between two states and leading to the intervention of members of the armed forces is an armed conflict within the meaning of article 2, even if one of the parties denies the existence of a state of war. it makes no difference how long the conflict lasts or how much slaughter takes place. any difference arising between two states and leading to the intervention of members of the armed forces is an armed conflict within the meaning of article 2, even if one of the parties denies the existence of a state of war. it makes no difference how long the conflict lasts or how much slaughter takes place.” 36 hans peter gasser ever been ask, that “when can an armed conflict be said to obtain? the convention themselves are of no help to us here, since they contain no definition of the term. we must therefore look at state practice, according to which any use of armed force by one state against the territory of another triggers the states. why force was used is of no consequence to the international humanitarian law.” dieter fleck, on haryomataram (2002) stated that “an international armed conflict if one party uses force of arms against another party. the use of military force by individual person or group of person will not suffice. it is irrelevant whether the parties to the conflict consider themselves to be at war with each person and how they describe this conflict.” 37 those all definition above concerning to armed conflict, concluded that in order to be regarded as armed conflict there must be the use of armed forces of one party against the other party. not necessary to consider whether one or both parties reject the existence of the so-called state of war. similarly, the length of the conflict took place and how many people who fell victim does not need to be considered. broadest definition of armed conflict affected some systematic for more elaborate and describe the notion of armed conflict happened. the first systematic stated by starke that called by status theory, and starke divided it into two types: (1) war proper between states; and (2) armed conflict which are not for the character of war. 38 second systematic emphasized by schindler 35 haryomataram. 2002. konflik bersenjata dan hukumnya. jakarta: universitas trisakti, p.1 36 ibid., p. 2 37 ibid., p.3 38 ibid., p. 3 26 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils i (1) november 2016, 13-34 http://journal.unnes.ac.id/sju/index.php/jils on haryomataram (2002) which is based on the 1949 geneva convention and the 1977 protocol divided it into four types: (1) international armed conflict; (2) war of national liberation: (3) non international armed conflict according to article; and (4) non international armed conflict according to protocol ii of 1977. 39 third systematic more clearly stated by shigeki miyazaki on haryomataram (2002), that miyazaki divided it into six types, as follows: 1) the armed conflict between the participants of the 1949 geneva conventions and the additional protocols of 1977, according to article 2 (1) of the geneva conventions, and article 1 paragraph (3) of protocol i; 2) the armed conflict between the contracting parties (countries) and the non-party participants (states/authority) de facto, for example, the authority or potentate who led the national liberation campaign, which has received the geneva conventions or protocols, according to article 2 (4) of the geneva conventions, article 1 (4), in conjunction with article 96 paragraph (3) of protocol i; 3) the armed conflict between the participants (state) and not the participant (states/authority de facto) who have not received both the geneva conventions and protocol i, according to article 2 (4) of the convention of geneva, martens clause, protocol ii (authority); 4) the armed conflict between the two countries not party (noncontracting parties) of article 2 (4) of the geneva conventions, according to article 3 of the geneva conventions (authority), martens clause, protocol ii (authority); 5) serious armed conflicts are non-international (uprising), according to article 3 of the geneva conventions, protocol ii, and also public international law; and 6) other armed conflicts, according to international covenant of human rights, and public law (criminal law). 40 fourth systematic stated by haryomataram, which is divided the armed conflict as follows: 1) international armed conflict a. pure armed conflict b. pseudo armed conflict, such as: (1) war of national liberation (2) internal armed conflicts which internationalized. 2) non-international armed conflict, which comply with: a. article 3 of the geneva conventions of 1949; and b. additional protocol ii of 197741 39 ibid., p.4 40 ibid., p.6 41 ibid., p.7 27 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang journal of indonesian legal studies vol 1 issue 01, 2016 http://journal.unnes.ac.id/sju/index.php/jils regarding to various systematic disclosed by starke, schindler, shigeki miyazaki and haryomataram can be drawn an outline that connects and has an affinity of various opinions or systematic nearly the same, namely the active participation of the countries involved in the conflict, both his role in international armed conflicts or non-international armed conflicts and arrangements that armed conflict is stipulated in the 1949 geneva conventions and the 1977 additional protocol ii and in the event of armed conflict, then both rules will be automatically binding for the parties, despite the absence of a declaration or acknowledgment of the parties have armed conflicts. in international humanitarian law perspective, armed conflict can be divided into three types, namely: 1) international armed conflicts article 2 of the 1949 geneva conventions stated that: “in addition to the provisions which shall be implemented in peace time the present convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the high contracting parties, even if the state of war is not recognized by one of them […].” although in article 2 of the 1949 geneva convention does not explicitly explain the meaning of international armed conflicts, however it is known that the subject is the state. in the 1977 additional protocol article 1 (4) explained: “the situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination, as enshrined in the charter of the united nations and the declaration on principles of international law concerning friendly relations and co-operation among states in accordance with the charter of the united nations.” from the article above, the government's war against the invaders (fighting against colonial domination), the war against the occupation government (alien occupation) and the war against the government operates a racist regime (against racist regimes) can be regarded as a war of independence (war of national liberation). war of national liberation can be said as the car conflict. however, not all car conflict can recognized as international armed conflicts, because the conditions are that there must be a declaration of universal issued by legitimate authority, representing the people who are dealing with the colonial government/population/ regime racist as a form requirements themselves bound by the 1949 28 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils i (1) november 2016, 13-34 http://journal.unnes.ac.id/sju/index.php/jils geneva conventions and its protocols. it is stipulated in article 96 paragraph 3 of protocol i in 1977. 2) non-international armed conflicts in the case of non-international armed conflicts, stipulated in article 3 of the 1949 geneva convention iv. 3) internal disturbance and tensions certain condition can be regarded as domestic chaos or internal tension is when the case of large-scale riots, acts of terrorism and sabotage which caused deaths and injuries, as well as their hostage. if the tension in the country is really happening in a country so the laws used is the national law of the country itself. various theories concerning to relationship of international humanitarian law and international human rights law according to caogeropolus there are three views of theories concerning to the differences in international humanitarian law and international human rights law, explained as follows: 1) integrationist according to this tenet, human rights law is the basis of humanitarian law or otherwise that international humanitarian law is the basis of human rights law. 42 2) separatist or separatism both human rights law and international humanitarian law has not relationship each other because they both contain some differences in terms of: a. object, that humanitarian law regulating armed conflict between states or between states with other entities, meanwhile human rights law regulates the relationship between the government and the citizens in their own country. b. personality, which is humanitarian law is mandatory apolitical and proprietary characteristic; whereas human rights is declaratory political character. c. promulgation, that international humanitarian applied in armed conflict but human rights law applies beside of armed conflict. 3) complementarism human rights law and international humanitarian law through a gradual process of developing parallel and complementary each other. 42 see gph haryomataram, bunga rampai hukum humaniter (hukum perang), bumi nusantara jaya, jakarta 1998, pp. 4-7 29 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang journal of indonesian legal studies vol 1 issue 01, 2016 http://journal.unnes.ac.id/sju/index.php/jils based on the three criteria of the relationship between human rights law and international humanitarian law, we can compare those all criteria with some expert opinions below which have different views from each other n explaining the relationship between human rights law and international humanitarian law. according to marion muskhat stated that there are some different principles both international humanitarian law and human rights law, namely: “in general, the difference between humanitarian law and the law of human rights is that the humanitarian law deals with the consequences of conflicts among the states or between states and some other specifically defined belligerent, but the law of human rights is concerned with the controversies between the government and individuals inside the state borders.” 43 in accordance with these opinions, between international humanitarian law and human rights law there are some differences of principle, the difference is such that the international humanitarian law regulate inter-state conflict with any country or country with the belligerent and the conflict between the government and individuals regulated by the law on human rights. the subsequent development of relationship between international humanitarian law and human rights basically contain in the un resolution no. mu 2444 (xxiii) in 1968 on the respect for human rights in armed conflicts, contents: 1. the parties to the dispute rights is not limited in the use of tools to destroy the enemy; 2. a prohibition on direct attacks against civilians; 3. mandatory always hold a separation between those participating in hostilities by civilians and the latter is as much need protection. but according drapper, although there are differences between international humanitarian law and human rights law but in the relationship between human rights law and international humanitarian law has a complementary relationship and filling, as stated by drapper as follows: “[...] the two bodies of law have met, are fusing together at some speed, and that in number of practical instances the regime of human rights is setting general direction, as well as providing the main impetus, for the revision of the law of war.” 43 ibid., p.21 30 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils i (1) november 2016, 13-34 http://journal.unnes.ac.id/sju/index.php/jils referring to the opinion of drapper above, the protection of international humanitarian law also include the protection of human rights that include rights that cannot be postponed, namely: 1. the right to life is granted a high degree of protection; 2. the right to be tried rather than detained without trial is protection; 3. the appears to be a continuing obligation to prosecute human right violations; 4. the primarty responsibility to ensuring compliance i imposed on the states; 5. the rights to shoot combatant is formally recognized; 6. the rights of combatants to be detainded but not tried is protected; 7. there is a tendenccy to grant an amnesty when the conflict is over for most conflict related crimes; and 8. individuals as well as states may be held responsible for ensuring compliance. according to yoram dinstein, noted that human rights in an armed conflict can be divided into two categories, namely: 44 1. rights granted to lawful or privilege combatants, i.e. combatants respecting the law of war and meeting the conditions which that body of law establishes; and 2. rights accorded to civilians. the essence of “the human rights lawful combatants” covers two things as follows: 1. they have rights to the status of prisoners of war once they are placed horse de combat by force of circumstance (being wounded, sick, or shipwrecked) or by choice (reviews their laying down arms); 2. lawful combatants also have the rights not to be the target of a biological or chemical weapons, poisons, and severed types of bullets or projectiles; as for what is meant by “the human rights accorded to civilians” are: 1. the civilians populations anywhere; 2. civilian enemy in the territory of a belligerent states; and 3. the civilian population in occupied territory.45 according to dinstein’s view of the foregoing, the protection of human rights in armed conflict (international humanitarian law) covers the rights given to combatants or horse de combat as well as the rights of the civilian population. the author argued that between international humanitarian law and human rights actually have a relation to one another, as the study authors 44 andrey sudjatmiko, perlindungan ham dalam hukum ham dan hukum humaniter internasional, paper on humanitarian law (proceeding), pshm-fh trisakti, jakarta, 1999, pp. 90-91. 45 ibid. 31 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang journal of indonesian legal studies vol 1 issue 01, 2016 http://journal.unnes.ac.id/sju/index.php/jils based on the relationship between the principles of the law of geneva 1949 and principles of the universal declaration of human rights in 1948 which was formulated by jean pictet in his book “development and principles”. 46 based on these descriptions above, the provision of international humanitarian law covers all human rights protection for victims of war and combatant. the human rights protection such as: 1. prohibitions and restrictions on means and methods of warfare which only cause suffering excessive/unnecessary in the war itself. for example the use of chemical weapons and also use methods that lead to starvation of the civilian population; 2. prohibition of attacks on civilians and civilian objects; and 3. prohibition of attacks on the horse de combat (combatants who had surrendered/incapable of resistance to illness or a prisoner of war). in accordance with these descriptions, the relationship between human rights and humanitarian law can be distinguished but not separated. the principles of the udhr may apply in international humanitarian law, but some of the principles of the udhr and limited humanitarian law only applied in times of peace and times of armed conflict. thus it can be argued that the gap between international humanitarian law and human rights togetherness bridged through the enactment of the principles of human rights and humanitarian law principles that cannot be postponed, despite the state of emergency or war, namely the principle of inviolability, the principle of nondiscrimination and the principle of security. conclusions the background and discussion above capture clear image concerning to the relationship of international humanitarian law and human rights law, and it can be concluded that under the protection of human rights in armed conflict (international humanitarian law) covers the rights given to combatants or horse de combat as well as the rights of the civilian population. the author argued that between international humanitarian law and human rights actually have a relation to one another, as the study authors based on the relationship between the principles of the law of geneva in 1949 and the principles of the universal declaration of human rights, 1948. the relationship between human rights and humanitarian law can be distinguished but not can be separated. the principles of the udhr may apply in international humanitarian law, but some of the principles of the udhr 46 dadang siswanto, kebijakan hukum pidana dalam mengantisipasi pelanggaran-pelanggaran berat dan pelanggaran ham yang diatur dalam protokol tambahan i dan ii-1977 (tesis), magister ilmu hukum undip semarang, 2002, pp. 157-158 32 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils i (1) november 2016, 13-34 http://journal.unnes.ac.id/sju/index.php/jils and limited humanitarian law only applies in times of peace and times of armed conflict. thus it can be argued that the gap between international humanitarian law and human rights togetherness bridged through the enactment of the principles of human rights and humanitarian law principles that cannot be postponed. bibliography agus, fadillah. 1997. hukum humaniter suatu perspektif. jakarta: humanitarian law studies center, faculty of law trisakti. bedjaoui, mohammed. 1986. modern wars: humanitarian challenge. a report for the independent commission on international humanitarian issues. london: zed books ltd. de mullinen, frederic. 1987. handbook on the law of the war for armed forces. geneva: icrc. effendi, h.a. masyhur. 1994. hukum humaniter internasional dan pokok-pokok doktrin hankamrata. surabaya: usaha nasional. espiell, hestor gross. 2000. “humanitarian law and human rights”, on januzy symonides (ed.) human rights: concept and standards, paris: unesco. final declaration of the regional meeting for asia of the world conference on human rights, as bangkok declaration 1993. haryomataram. 1984. hukum humaniter. jakarta: cv rajawali. ----------------------1998. bunga rampai hukum humaniter (hukum perang). jakarta: bumi nusantara jaya. ----------------------2002. konflik bersenjata dan hukumnya. jakarta: universitas trisakti. istanto, f. sugeng. 2001. hukum internasional. yogyakarta: universitas atmajaya yogyakarta. komisi hak asasi manusia. 1997. hak asasi manusia dalam perspektif budaya, makalah muladi. jakarta: gramedia pustaka utama. muladi. 2002. demokratisasi, hak asasi manusia, dan reformasi hukum di indonesia. jakarta: the habibie center. nasution, adnan buyung. 2003.implementasi perlindungan hak asasi manusia dan supremasi hukum, on seminar pembangunan nasional (national development seminar) vii/denpasar bali 14-18 juli 2003. pechota, vratislav. “kovenan hak sipil dan politik”,on training material on law and human rights for law lecturer, held by pusham universitas islam indonesia in collaboration with university of oslo norway, yogyakarta, 24-25 september 2005. permanasari, arlina,et al. 1999. pengantar hukum humaniter. jakarta: international committe of the red cross. 33 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang journal of indonesian legal studies vol 1 issue 01, 2016 http://journal.unnes.ac.id/sju/index.php/jils short, sonia haris. “international human rights law: imperialist, inept and ineffective? cultural relativisme and the un convention on the rights of the child in human rightsquarterly”. a comparative and international journal of the social sciences, humanities, and law. volume 25 number 1, february 2003. p.131. siswanto, dadang. 2002. “kebijakan hukum pidana dalam mengantisipasi pelanggaran-pelanggaran berat dan pelanggaran ham yang diatur dalam protokol tambahan i dan ii-1977”. master thesis. semarang: master of laws, universitas diponegoro. sudjatmiko, andrey.1999. perlindungan ham dalam hukum ham dan hukum humaniter internasional, paper on hukum humaniter (kumpulan tulisan). jakarta: pshm-fh trisakti. pp. 90-91. tasyrif, yasin.1990. hukum humaniter internasional, buku pegangan kuliah mahasiswa fh undip. semarang: faculty of law undip. united nation, 1993. human rights question and answer. new york: united nations department of public informations. verri, pietro. 1992. dictionary of international law of armed conflict. geneva: international committee of the red cross. laws, regulations, conventions law no. 39 of 1999 concerning indonesian human rights law no. 26 of 2000 concerning indonesian human rights court indonesian human rights charter viena declaration and programme of action (june1993) 34 copyright © 2016 by postgraduate program faculty of law, universitas negeri semarang muhammad ikhsan lubis jils i (1) november 2016, 13-34 http://journal.unnes.ac.id/sju/index.php/jils law adagium interset reipublicae res judicatoas non rescindi it is in the interest of the state that judgments already given not be rescinded 29 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. 29-46 issn (print) 2548-1584 issn (online) 2548-1592 the implementation of minister of health regulation on performance improvement in individual and community health service (study of puskesmas bawen, central java) selvia ichwani hidayati selvia ichwani hidayati postgraduate program, faculty of law, universitas negeri semarang  selviaichwani@gmail.com table of contents introduction ………………………………………………………… 30 the implementation of minister of health regulation number 71 of 2013 on public health center performance improvement in individual and community health service at bawen puskesmas………………………...……………………………………… 33 obstacles in implementation of public health center performance improvement in individual and community health service at bawen puskesmas .…………………………………………………………...... 43 conclusion ……………………………………………………………. 44 bibliography …………………………………………………………. 46 * i would like to thanks to all medical staff of puskesmas bawen for their help on obtaining my research data. i also would like to express a deep thankfulness to ms dr rodiyah spd sh msi and professor sudijono sastroatmodjo msi who supervised me and for their valuable comments. 30 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang selvia ichwani hidayati jils 3 (1) may 2018, 29-46 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on january 2018 approved on february 2018 published on may 2018 one of public services implemented by the government is the fulfillment of public health needs. health reform is implemented to improve health services that make it more efficient, effective and accessible to all levels of society. towards a better and overall health insurance, the government issued law no. 40 on the national social security system whereby health insurance is a priority that will be developed to achieve the participation of universal health coverage (uhc). this paper discusses the implementation and constraint in the implementation of improving the health services performance in individual and community health services at bawen public health center (puskesmas, pusat kesehatan masyarakat). the author argued that the implementation of improving the public health center performance in individual and societal health services perspective minister of health regulation number 71 of 2013 at bawen public health center has been running in accordance with the implementation indicators, but there are still some problems internally and externally that is late drugs provision that inhibit delivery service. in addition, the attitude and clarity in providing information needs improvement. keywords: public service; implementation; national social security system; performance; national health insurance. introduction providing of public service by the state apparatus to the public is the implication of the state apparatus function as the public servant. therefore, the position of state apparatus in public services will determine the extent of the government is able to provide the best service to the community, thereby determining the extent to which the state has performed its role in accordance with its objectives. the most important thing is the extent to which the government can manage these functions in order to produce goods and services that are economical, effective, efficient and accountable to all people who need it. it means that government services should not be given discriminatively. service how to cite (chicago manual style) hidayati, selvia ichwani. ―the implementation of minister of health regulation on performance improvement in individual and community health service (study of puskesmas bawen, central java)‖, journal of indonesian legal studies (jils), 2018 3(1): 29-46. 31 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 is provided regardless of status, rank, class of society and every citizen has the same rights to these services in accordance with applicable regulations. at the beginning of indonesian independence, various matters with the state of society have been regulated in the 1945 constitution. the founding fathers of the nation hope that the realization of the government of the indonesia entire blood to realize the common prosperity and participate in world peace (rodiyah 2016). the changes after independence as well as reformation are more likely to policy reform. reich (1995) explained more concerning to policy reform that according to him, policy reform is inevitably political because it seeks to change who gets valued goods in society. five specific reasons can be proposed to explain the political dimensions of policy reform: (1) reform represents a selection of values that express a particular view of the good society; (2) reform has distinct distributional consequences in the allocation of both benefits and harms; (3) reform promotes competition among groups that seek to influence the distributional consequences; (4) the enactment or non-enactment of reform is often associated with regular political events or with political crises; and (5) reform can have significant consequences for a regime’s political stability or longevity. one of substantial policy reforms is on health and medical sector. siddiqi et.al. (2009) emphasized health systems governance is currently a critical concern in many countries because of increasing demand to demonstrate results and accountability in the health sector, at a time when increasing resources are being put into health systems where institutional contexts are changing rapidly. health reform is implemented to improve health services that make it more efficient, effective and accessible to all levels of society. as stated in the indonesian minister of health decree no. 951/menkes/sk/vi/2000 that ―the purpose of health development is to increase awareness, willingness and ability to live healthy for every person to realize the optimal health of society‖. this implementation of regulation, according to habibah et al (2015) has conducted well enough which both hospitals can manage and execute the health service in the term of the national health service. it could be seen from the administrative and health service, as well as about the mechanism of funding. the drafting of ri law number 23/1992 on health, then replaced by law no. 36/2009 on health. in it is affirmed that everyone has the same right in obtaining access to resources in the field of health and health services that are safe, comfortable, quality and affordable, where everyone is obliged to participate in the social health insurance program. in accordance with law number 32 of 2004 on regional government in chapter iv article 11 paragraph (2) it is stipulated that the areas of government that must be implemented by the regencies and municipalities are public works, health, education and culture, agriculture, transportation, industry and trade, investment, environment, land, cooperatives, and labor. based on it, the health sector occupies second place (after the public works 32 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang selvia ichwani hidayati jils 3 (1) may 2018, 29-46 http://journal.unnes.ac.id/sju/index.php/jils field) of the area of government that must be implemented by the district and municipal governments. increasing the level of education and social conditions of society then, also increased public awareness about the meaning of healthy living. these circumstances cause the public demand for quality health services, comfortable and customer-oriented satisfaction is increasing urgently so that high service performance is required. in accordance with law number 32 of 2004 on regional government in chapter iv article 11 paragraph (2) it is stipulated that the areas of government that must be implemented by the regencies and municipalities are public works, health, education and culture, agriculture, transportation, industry and trade, investment, environment, land, cooperatives, and labor. based on the law, the health sector occupies second place (after the public works field) of the area of government that must be implemented by the district and municipal governments. it means that the regent government and the municipal government are fully responsible for the implementation of health development in order to improve the health status of the people in their region, by providing excellent service and satisfactory to the community. the process of health services and the quality of services is related to the availability of health facilities consisting of basic health services (public health center, clinic), referral services (hospitals), availability of health workers, equipment and medicines. while the performance of services concerning the work, the speed of work, work done in accordance with customer expectations, and timeliness in completing the work. bawen semarang public health center located in bawen sub-district is a health service provider with work area covering 9 (nine) urban villages of asinan, bawen, doplang, harjosari, kandangan, lemah ireng, polosiri, poncoruso, samban with 2 (two) public health sub-center, namely harjosari and kandangan. initial observations in the field are still found many deviations in service delivery. the deviation is due to the following reasons: 1. the health insurance participant does not understand and know the procedure of using health insurance card, for example in the case on referral from bawen public health center to general hospital of semarang city, if there is no expert doctor subsequently submitted to provincial hospital. 2. complaints from patients, who received medication from the public health center, felt less rapidly so that the patient requested a referral to the hospital but not given by the public health center. 3. re-control/treatment at the general hospital of the city or province, there should be a referral from the public health center for the treatment (taking funds from bpjs treatment). 4. other causes, the public health center did not give a complete explanation to the health insurance participant so there is a miscommunication (misunderstanding). 33 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 number of visitors to bawen public health center increased and decreased every month for one year. the decrease trend of visitor that happened in puskesmas bawen can be caused by two factors that is external factor which enable the number of patient that sick in work area of bawen semarang public health center also decrease. in addition, the community itself is reluctant to get a treatment at bawen semarang public health center and choose directly to hospital or other health center service. health insurance is a health protection guarantee for participants to health care benefit and protection in basic needs provided to everyone who has paid their fees or fees paid by the government. toward a better and comprehensive healthcare guarantee, the government issued law no. 40 on the national social security system where health insurance is a priority that will be developed to achieve the universal membership. the purpose of this paper is to describe the implementation of improving the health services performance in individual and community health services at bawen public health center. the second, find obstacles to the implementation of improving the public health center service performance in individual and community health services at bawen public health center. this paper uses a qualitative approach to the type of sociojuridical research. the implementation of minister of health regulation number 71 of 2013 on public health center performance improvement in individual and community health service at bawen puskesmas public policy is a series of activities that have a specific purpose followed and implemented by a group of people who deal with a problem or a matter noticed. one of the implemented public policies is the health policies in the form of the national health insurance program. the national health insurance program, developed by bpjs, is one of the programs based on community empowerment in the scope of health. the purpose of it is to ensure that participants get their health care benefit and protection in the basic health needs. the national health insurance program, developed by bpjs, works well if there are several variables that must be met. variables that must exist in the implementation of public policy according to the van meter and van horn models in winarno (2014) include the standards and policy goals / measures and policy objectives, resources, organizational characteristics of implementers, attitudes of executors, inter-organizational communication and implementation activities, the social, economic and political environment. 34 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang selvia ichwani hidayati jils 3 (1) may 2018, 29-46 http://journal.unnes.ac.id/sju/index.php/jils first, standards and policy goals / measures and policy objectives at bawen public health center covering the standards of service providers. the program standard of a policy is crucial to the successful achievement of the objectives of national health insurance program implementation, especially in bawen public health center. in order to a fluent program, this regulation should be understood by every implementer in the field, either public health center or bpjs. the standard of the national health insurance program of the public health center includes: 1. the public health center has operating license. 2. the public health center has a practice license for doctors / dentists, pharmacist practice license for pharmacists and work practice license for other health workers 3. have cooperation agreements with the network, if necessary 4. a statement of willingness to comply with the provisions relating to the national health insurance according to van meter and van horn (winarno 2014), there are some things that cause the government regulations not run well, they are: first, the area of the program is too broad and the nature of a complex purpose. second the result of the obscurity and contradiction in the statements of basic measures and objectives. sometimes, the ambiguity in the measures by the decision-makers appeared in order to ensure positive responsiveness of those people who are assigned implementation responsibilities at another level of organization or policy delivery system. furthermore, masyitoh et al (2016) on their research on semarang medical and health services, emphasized that, that in order to evaluate the quality of health care there are some things that must be considered, including: (1) tangible (direct evidence) that is in respect of physical evidence such as medical facilities and the performance of health workers; (2) reliability, with regard to the local health center to provide accurate service since it first without making any mistakes in delivering the service in accordance with the agreed time; (3) responsiveness, with regard to the willingness and ability of workers to help patients and responding to patient demand, as well as let you know when the services will be provided and then provide services quickly; (4) assurance, the behavior of officers who are able to foster customer trust in puskesmas and puskesmas can create a sense of security for their patients; (5) empathy, a matter related to peers who understand the patient's problems and act on behalf of the patient, and give personal attention to the patients and have a comfortable operating hours. cooperation standard of health facilities with bpjs which is provision of facilities also determines the success of achieving the objectives of the national health insurance program implementation, at bawen public health center. in order for a fluent program, then the provision of facilities in public health center must be understood by its workforce, as well as the bpjs health. in facts, that at bawen public health center has a set of regulations that is minister of health of the republic of indonesia regulation number 44 of 2016 on public health center management guidelines, 35 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 minister of health regulation no. 75 of 2014 on public health center standard equipment. directly researchers also ask about the rules that informants know, but not all can clearly explain the types of documents, but nevertheless they have a guide from the government regulations. health service standard for participants in public health center covers the type of service, service requirements, cost / tariff of service, service completion time, service product, and service procedure. it has been in accordance with minister of health regulation no. 71 of 2013 article 13 paragraph 1 stating that every participant is entitled to receive health services that include promotion, preventive, curative and rehabilitative services including in the services of medicines and medical consumables in accordance with the necessary medical needs. in contrast, prado and gonzalez (2007) argued that in many low income countries, professional bodies are weak and the private sector is completely unregulated. when the work environment is permissive, work morale is low and monitoring is weak or non-existent, the negative consequences of dual practice are made worse. target of health service provider where the participation of jkn program according to presidential regulation no. 12 of 2013 article 6 is mandatory and done gradually to cover the entire population of indonesia in 2019. basically, all already know the target of health service providers jkn program is the whole of indonesia, and the informants understand that the participants must be in the early period is in accordance with the stipulated in presidential regulation no. 12/2013 article 6, it is in line with the theory of van meter and van horn (1975) as quoted by winarno (2014) stated that the implementation of understanding of the standards and goals of the program is crucial to the success of the implementation process. but in the other conditions, implementation of this regulation, brugha and zwi (1998) stated that intervention to optimize provider practice need to be context-sensitive and based upon an understanding of the range of factors which determine or influence provider behavior. in developing and implementing strategies for improving provider practices, consideration needs to be given to the importance of the policy, professional, economic and regulatory contexts in which public and private providers operate, provider knowledge and the factors that determine it, the availability of and access to diagnostic and treatment resources, and the complex range of interacting needs, demands and expectations of providers, patients and communities. the cooperation of health facilities with bpjs at bawen public health center generally that the health facility shall ensure that participants to obtain the necessary medicines and medical consumables in accordance with medical indications. outpatient health facilities that do not have supporting facilities must build a network with supporting health facilities to ensure the availability of medicines, and required investigations (presidential regulation no. 12 of 2013, article 30). target health services for participants at public health center needed the same understanding in running health service of jkn program in health 36 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang selvia ichwani hidayati jils 3 (1) may 2018, 29-46 http://journal.unnes.ac.id/sju/index.php/jils facility, for a fluent program, policy must be understood by every stakeholder in the field according to their respective roles. this is in line with minister of health regulation ri no. 28 of 2014 about guidelines for the national health insurance program implementation is stipulated in an effort to provide an understanding of the national health insurance program to all relevant stakeholders so that its implementation can run properly, effectively, efficiently, transparently and accountably. benefits provided to participants in the form of comprehensive health care based on necessary medical needs. by knowing the benefits and the role of implementers both in the health office and bpjs, is expected to be a benchmark to improve performance in service delivery for both individuals and communities. so the authors can draw the conclusion that the implementation of a good program is the result of the implementers commitment and understanding of an existing regulation / policy and able to make local policies to improve performance in patient services of jkn participants in the public health service. the success of a policy implementation must also have an element of resources. without adequate resources, then a policy implementation will have difficulties. for the sufficiency of medical personnel, can be seen in the table below, and seen the sufficiency rate for medical services in the public health center quite well done with the number of medical personnel who adequately meet the needs at the health service. the main source of cooperation between health facilities with bpjs of public health center in program implementation is the human resources (staff). failure that often occurs in the implementation of the policy, one of them, caused by human is not sufficient, adequate, or not competent in their field. the increase in staff numbers is not sufficient, but sufficient staff is required and have the appropriate skills to run the program. so the need for special attention to human resources for the implementation of future jkn program and the structuring of human resources in an institution must run maximally so that the program can continue to run. based on minister of health regulation no. 71 of 2013 article 32 states bpjs health makes payments to health facilities that provide services to participants. the amount of the fee is based on the agreement between the bpjs health and the health facility association in the region which refers to the standard tariff set by the minister of health. in general, facilities and infrastructure is a supporting tool to the success of an effort process undertaken in public services, because if both of these are not available, then all activities undertaken will not be able to achieve the expected results in accordance with the plan. bawen public health center already has sufficient equipment for public health center category and utilized properly and correctly, and is in accordance with the regulations issued by the minister of health concerning the categorization of public health center with the service that can be given. successful implementation of the policy depends on the ability to utilize the available resources. humans are the most important resource in 37 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 determining the success of a policy implementation. each stage of implementation requires quality human resources in accordance with the work implied by a politically determined policy. third, characteristics of implementing organizations according to van meter and van horn in agustino (2006), in the implementation of a program, the character of the implementers of the policy or program must be strict on the rules and obey the applicable legal sanctions. characteristics of implementing organizers of health organizations where the character of public health center that looks serious with the implementation of jkn is also supported by the bpjs who have seriousness in the form of regulations that have been made by the government. but these equally powerful characters without any desire for synergy will be wasted. the expected synergy is the mutual ability to support its implementation with a balanced policy determination and equally facilitated in its implementation. health services in the implementation of the jkn program can be seen from health facilities determined by the government or in collaboration with bpjs vary widely. some use only public health facilities, some use private health facilities and some combine to use public and private health facilities. the health services provided at the bawen public health center are for services on basic care category. for not provided services at the public health center, a referral system to other advanced health facilities will be able to handle the case. so that no patient that is a jkn participant who does not get jkn services, as long as it has been in accordance with the rules and implementation procedures established by the government and health service as health provider. referral is made to hospitals that accept jkn patients. one of them is rsud ambarawa which has the ability of health equipment more complete as stated in minister of health regulation number 71 of 2013 article 3 paragraph 4. implementation of the national health insurance program outlines several government components from the president, national social security council which serves to assist the president in the formulation of public policy and synchronization of the national social security system, bpjs as an institution of the national health insurance, and up to the hospital or public health service level team. the implementation of this sector—health sector—become one of the important things, because as emphasized by sandiata (2013) health services (medical) is an important thing that must be maintained or improved quality in accordance with applicable service standards, so that the community as consumers can feel the services provided. the service itself is essentially an attempt to help prepare everything that is needed by others and can provide satisfaction in accordance with the wishes expected by consumers. there are three components involved in a service process that is, the service is determined by the quality of service provided, who is doing services, and consumers who value a service through the expectations it wants. 38 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang selvia ichwani hidayati jils 3 (1) may 2018, 29-46 http://journal.unnes.ac.id/sju/index.php/jils according to data analysis obtained that the division of tasks and responsibilities of program implementers and service providers have been adjusted to their respective areas of expertise. the structure of the bureaucracy is made very flexible and not complicated. in implementing a program, the character of the policy or program implementers must have a strict nature of the rules and obey the applicable legal sanctions. characteristics of health services for the participants of the service provide good service and appropriate with the patient expectation that every patient who needs help/information or complaints then public health center directly responded. this is felt by the patient from the way the officer treats them well and patiently whenever there are difficulties and complaints. this situation indicates the commitment of the officer in providing services that the patient needs clearly, it means that the officer has been able to provide satisfactory service of the patient. furthermore, attitude of the implementers (disposition) is an important part that if the implementer has a good disposition, then the implementer can run the policy as well as what the policy maker wants. the attitudes of the implementers (disposition) health service providers also determine the success of the national health insurance program implementation. without good attitudes and behavior also high dedication from the national health insurance program implementers, it is very difficult for health service providers and program beneficiaries to implement programs in the form of health services. a personal attitude is one part of an effort to generate mutual trust between the patient and the officer so that the patient feels there is comfort, closeness, and openness will help establish communication between them. at bawen public health center, the people/patients treated are always handled by the appropriate staff or doctors in their fields so that the patient does not have to worry about getting the services and attention from the bawen public health center officers though not thoroughly. however, it is in accordance with minister of health regulation no 71 of 2013 on health service facilities at the first level in article 2, paragraph 2. the attitude of the implementers (disposition) of health facilities cooperation with bpjs is influenced by its perspectives on a policy and how to see the influence of the policy on the interests of its organization and its personal interests. in general, officers who implement the jkn program both from the medical and non-medical side should perform their duties as best as possible because it is a top-down policy where the policy or program is born from the central government for all of indonesia. attitudes of health service implementers (disposition) for participants at public health center based on the attitude of acceptance seen from the opinions of informants about this new program, this is one of the positive things that the program can run sustainably. in the position of informants is the spearhead of program implementation, they know clearly the duties and functions of the position. based on the opinion of van metter and van horn (winarno 2014), the attitude of acceptance or rejection of the policy 39 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 implementing agent greatly influences the success or failure of public policy implementation. this is very possible because the policies implemented are not the result of formulation of local people who know the problems and problems they feel. fifth, the communication is the process of delivering information from the communicator to the communicant. communication is the promotion or explanation of the form of the program, the goals, and objectives of the health service program by the implementer of the public health insurance policy to the community. communication between jkn members/organization of program organizers in bawen public health center consist of bpjs as the organizer of jkn program and bawen public health center as provider (service provider) of jkn program. public health center from the beginning already have their own team who take care of the guarantee program, since 2013 the number of guarantee team in bawen public health center consists of 1 coordinator and 2 members. the whole team is directly responsible to the section head of non-medical services. communication becomes very important for implementing a policy because of the communication issues such as the collaboration of each executor occurs (goggins 1990 in hill and hupe 2002). according to minister of health regulation no. 71 of 2013 article 2 paragraph 1 and 3 stated that the health service provider covers all facilities in cooperation with bpjs health such as main clinic, general hospital, and special hospital. this is reinforced by the presidential regulation no. 12 of 2013 article 36 paragraph 2 states, health facilities owned by the government and regional government that meet the requirements must cooperate with bpjs health, thus bawen public health service which is part of regional work unit of semarang city government must be the provision of health services in cooperation with bpjs. communication of health facility cooperation with bpjs is better, that is communication coordination among the parties involved in policy implementation then the mistake will be smaller. implementing directly in the field for the jkn program is the public health service as the provider (service provider) and bpjs health as the organizer of its national health insurance program. communication within the framework of delivering information to policy implementers about what is to be a standard and a goal must be consistent and uniform (consistency and uniformity) from various sources of information. according to carl i hovland (in suhandang 2009) states that communication is a process in which a person (a communicator conveys a stimulus is usually a symbol in the form of a word) to change the behavior of other human beings (audiences). communication established between program implementers is puskesmas bawen and bpjs, if drawn the conclusion from the quotation statement, the above interviews prove that the coordination is happening quite awake, as well as the observance of the two 40 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang selvia ichwani hidayati jils 3 (1) may 2018, 29-46 http://journal.unnes.ac.id/sju/index.php/jils rules implementers are also seen. hovland also identified four factors involved in the communication process, ie: 1. communicator, who initiated his communication, 2. stimulation, or a stimulus or commonly also called a communication message delivered by the communicator, 3. audience, commonly called communicants who reach the communication message, 4. the response of the audience to the communication message communicated by the communicator. the communication established between the program implementers namely bawen public health center and bpjs proved that the coordination that occurred was quite awakened, and the observance of the two implementers of the regulation was also seen. as now, the puskesmas is obliged to immediately filed for the claim of jkn, as well as the bpjs must immediately disburse claims bill as soon as possible when the file has been received. communication and good coordination is very helpful for the well implementation process. the two executing parties can be concluded mutual co-ordination of the procedures or regulations that have been made by the central government. communication of health services for community participants/patients who have treatment generally have a perception or response about the illness he suffered and required figure of a doctor who handle and hope (cured) desired by the patient bawen public health center implements a good communication between employees one with the other employees in providing services to service users. if there is a case or problem between employees, they can exchange ideas to find the best solution in solving the problem so it is expected to give satisfaction to the patient as the recipient of the service. implementation of the national health insurance program outlines several government components from the president, national social security council which serves to assist the president in the formulation of public policy and synchronization of the national social security system, bpjs as an institution of the national health insurance, and up to the hospital or public health service level team. at the public health service level, the coordinating team from the person in charge of the program, the treasurer to the data entry officer and the verification of fund claims. it is in order to achieve the goals that have been set. sixth, the last thing to note in the implementation of public policy in the perspective offered by van metter and van horn is the extent to which the external environment to drive the success of public policy has been established. the economic, social and political environment of national health insurance as stipulated on the economic, social and political environment of the national healthcare provider the health service provider has an important influence on the wishes and capabilities of the juridical or 41 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 implementing organization. the external environment—social economic and political environment—contributes to the success of public policy. especially in bawen public health service, the whole bpjs health program process is given to the people who need it. the bpjs law stipulates that "bpjs health is functioning to organize a health insurance program." health insurance under the sjsn law is nationally organized based on the principle of social insurance and equity principles, with the aim of ensuring that participants benefit health care and protection in meeting basic health needs. bpjs employment under the act bpjs is used to organize 4 (four) programs, namely work accident, insurance program, pension, and death guarantee. the external environment, in this environment of social economy and politics, contributes to the success of public policy. especially in bawen public health centre, the whole bpjs health program process is channeled to the people who need it. the economic, social and political environment of service to participants coincides with its launch in the political year, which is in 2014 also a party of indonesian people's democracy, namely the general election. people are eager for this national health insurance program to continue to be the government's priority program in fulfilling people's right to healthy living, so that all the people, especially those who are less able to obtain the health services they need without being limited by financing that they cannot meet. social and political factors in bawen sub-district are conducive, local government policy policies support the implementation of the jkn program. this can be seen from the positive response from the public to the jkn program, without adjusting it because this program only improves the previous health financing system in the form of jamkesmas, askeskin, askes and other health financing programs. policies that have the primary objective of meeting the basic needs of the people who are also the main problems for them, according to van meter and van horn (winarno 2014) this provides a social impact where people will be more enthusiastic and accept the policy to be implemented . in view of the underlying objectives of the implementation of the national health insurance program, the policy-makers’ alignment of the people especially those with limited access to adequate health care. so the tendency to be accepted and implemented in the community as a target group can work well. the tendency to be accepted by society well will certainly be closely related to the implementation process later. when the implementation of the program is not in line with the objectives of the program itself, it will potentially emerge a polemic that will impact on political rejection. however, the condition of health sector, it also refers to the increasing privatization of health care provision has been a central element of health sector reform in many countries. kumaranayake (1997) stated that regulation is often seen as a potential response to address the many problems which arise in the private production, financing and delivery of health services. it is seen as having a 42 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang selvia ichwani hidayati jils 3 (1) may 2018, 29-46 http://journal.unnes.ac.id/sju/index.php/jils crucial and balancing role in the push towards privatization. despite the existence of basic regulatory legislation in most developing countries, the degree to which regulations are enforced and effective is low. public acceptance of the implementation of the national health insurance program at bawen public health center is not only because of the objectives that describe the alignment to them, but it requires consistent attitude of the implementers to implement the program in accordance with the basic goals, so as not to deal with the problems that hinder the implementation of the program. the people are eager for this national health insurance program to become the government's priority program in fulfilling the people's right to healthy living, so that all the people, especially those who are less able to obtain the health services they need without being limited by financing that they cannot meet. seventh, the performance of the national health insurance policy at bawen public health center with the national health insurance helps many people in the region. the government's action through the health office of semarang regency by implementing the national guarantee program also shows how the government of semarang regency has utilized the abilities that he has as much as possible for the welfare of the people. after the policy of this national health insurance program, then it is not less important and need to get attention by mobilizing the ability of institutions or institutions executing effectively that is how to implement this policy in order to achieve the goals or objectives of the policy itself. bawen public health center with the national health insurance help many people in the region. it also improves public health and achievement of jkn program objectives. public health center is a health service facility that organizes public health and individual health efforts at the first level, by prioritizing promotion and preventive efforts to achieve the highest level of public health in its working area (minister of health regulation ri no. 75/2014). it has performed its function as a provider of health services, and bpjs has also performed its duties as an interlocutor of the jkn program, and the government as a mediator in the implementation. in fact, the implementation of bpjs as well as jkn program, should be become the priority of government, as pointed up by lestari (2001) that the first of private hospitals in the shape of social institution or other corporation is helping the poor people, but they are forced to change their principle to be social economy. it means that the hospitals are organized economically in order to survive but they don´t leave their social functions. the condition as stated above has multiple effect in one side it is good for human life but in other sides it causes a lot of dilemmas of biomedical norms and commercialization of health services. 43 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 obstacles in implementation of public health center performance improvement in individual and community health service at bawen puskesmas since the implementation of the jkn policy, there have been problems with socialization, commitment between management and health providers with different communities, resulting in different commitments related to mechanisms, and still the capacity gap between regions (infrastructure, database, budget, and human resources). the obstacles found in the efforts of bawen public health center in performing health services to patients of health insurance include complaints that occur both from external experienced by service providers who come from outside the organization itself as well as internal obstacles derived from within the organization itself. obstacles or constraints could come up from inside and outside the organization. obstacles from inside can be seen from the availability of human resources, organizational structure, funds, facilities, information and rules of the system and procedures are clear. obstacles from the outside can be seen from the forces that influence directly or indirectly such as rules, targets, economic conditions, political, socio-cultural and so forth. barriers that affect and can determine the course of success in implementing a health policy. the first is the external obstacles that include the lack of awareness of the community. the community as the object of the national health insurance program at bawen public health center, in fact has not fully understood in detail and deeply related to this policy. where the understanding of some people is limited to the existence of free health services whose fees will be charged each month by paying dues and free for them to get bpjs pbi, but other technically not too well understood. this condition reflects that the level of people's understanding of the program is diverse, depending on how they perceive it. if then associated with the conception of the policy, the understanding of the recipients of the program must be in line and synergize with the wishes of the program. this is so that in the implementation, people can follow the rules and paths that have been determined. not based on the perspective of each that can cause misunderstandings in understanding the wishes of the program. even just the community as the recipient of the program, in the scope of health officials at the health center level also has a different perspective and understanding of the national health insurance/bpjs. then jkn participants have not understood the tiered referral system and jkn service procedures. it is related to the socialization conducted, may be less comprehensive or may also tend to people who are indifferent when an 44 copyright © 2018 by postgraduate program faculty of law, universitas negeri semarang selvia ichwani hidayati jils 3 (1) may 2018, 29-46 http://journal.unnes.ac.id/sju/index.php/jils officer comes and explains about this health insurance. so they do not understand where to seek treatment when sick, not only the community which as program user but also for employee in the health scope especially at the village and sub-district levels. so, that synchronization between society and health officer can run to minimize misunderstanding when people get health service by using national health insurance program facility. furthermore, the implementation of jkn program, suryati and putri (2012) stressed that it need to rearrange the association of existing service facilities, to be able to accommodate its role as a negotiating representative of its main duty as a provider of health services. as far as possible the form of representative / branch association in all administrative areas that exist. second, the internal obstacles that cover the availability of facilities and infrastructure needed as an organizer in supporting the fluent program. in addition, the lack of equipment related to the mobilization of employees working in public health center affects the performance of employees in disseminating the program up to the village level. conclusion the implementation of the jkn program at bawen public health center has been ongoing from the beginning of 2014 where the new program was launched by the central government simultaneously throughout indonesia and until now the implementation of jkn in bawen public health center has been run in accordance with the rules and implementation guidelines. this is evident from the commitment or policy of public health center in the form of sop, service flow, until the implementing regulation established by public health center to support the implementation of the program. in addition, implementing human resources in public health center which is sufficient, supported by adequate facilities and infrastructure and funding sources from bpjs health claims. this is also supported by the characteristics of public health center that make implementing regulations that match the character in bawen public health center. the acceptance attitude of the program implementers is also very visible. the social, political and economic environment also supports the implementation of the jkn program. obstacles that arise in the implementation of improving the performance of public health center in individual and community health services at bawen public health center, namely: the first is the external obstacles that include the lack of awareness of the community. the community as the object of the national health insurance program at bawen public health center, in fact has not fully understood in detail and deeply related to this policy. and jkn participants 45 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 do not understand the tiered referral system and jkn service procedures. it is related to the socialization conducted, may be less comprehensive or may also tend to people who are indifferent when an officer comes and explains about this health insurance. second is the internal obstacles that cover the availability of facilities and infrastructure needed as an 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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 perkembangan kriminalitas dan perkembangan delik-delik khusus dalam masyarakat modern. bandung: alumni, 1992. --------------------------. perkembangan sistem pemidanaan di indonesia. semarang: pustaka magister, 2015. amalia, renata. “pertanggungjawaban korporasi dalam tindak pidana pencucian uang menurut hukum islam”, al-jinayah jurnal hukum pidana islam, december 2016, 2(2): 387-407, december 2016, retrieved from http://jurnalfsh.uinsby.ac.id/index.php/hpi/article/download/429/379 / bammelan, j.m. van. hukum pidana 1 hukum pidana material bagian umum (onsstrafrecht 1 het materiele strafrecht algemeen deel), hasan (trans) bandung: binacipta, 1984. garnasih, yenti. “tindak pidana pencucian uang sebagai fenomena baru di indonesia dan permasalahannya”, paper, presented at seminar faculty of law universitas sumatera utara, medan, 2004. hamzah, andi. hukum acara pidana indonesia. jakarta: sinar grafika, 1996. kristian. “urgensi pertanggungjawaban pidana korporasi”. jurnal hukum dan pembangunan, 2013, 44: 575-621. lee, ian b. “corporate criminal responsibility as team-member responsibility”. oxford journal of legal studies, 2011, 6(1): 1-29, retrieved from https://www.law.utoronto.ca/documents/lee/leecorpcrimresp.pdf marpaung, leden. asas-teori-praktik hukum pidana. jakarta: sinar grafika, 2005. masyhar, ali. pergulatan kebijakan hukum pidana dalam ranah tatanan sosial. semarang: unnes press, 2008. muladi and diah sulistyani. pertanggungjawaban pidana korporasi. (corporate criminal responsibility). bandung: alumni, 2013. muladi and dwidja priyanto. pertanggungjawaban pidana korporas. jakarta: kencana prenada group, 2010. priyanto, dwidja. kebijakan legislasi tentang sistem pertanggungjawaban pidana korporasi di indonesia. bandung: cv utomo, 2004. http://jurnalfsh.uinsby.ac.id/index.php/hpi/article/download/429/379/ https://www.law.utoronto.ca/documents/lee/leecorpcrimresp.pdf 235 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils reksodiputro, mardjono. kemajuan pembangunan dan kejahatan. jakarta: pusat pelayanan keadilan dan pengabdian hukum ui, 1994. -----------------------. “kejahatan korporasi suatu fenomena lama dalam bentuk baru”. indonesian journal of international law, 2014, 1(4): 693708. -----------------------. “money laundering, bank secrecy act”, online article, 2017, retrieved from http://www.komisihukum.go.id/article_opinion.php?mode=detil&id =25 roland, hefendehl. “corporate criminal responsibility: model penal code section 2.07 and the development in western legal system”. buffalo criminal law review, 2000, 4(1): 283-300. doi: 10.1525/nclr.2000.4.1.283. remmelink, jan. hukum pidana. jakarta: pt gramedia pustaka utama, 2003. republic indonesia, money laundering law, undang-undang republik indonesia nomor 8 tahun 2010 tentang pencegahan dan pemberantasan tppu. schaffmeister, d., et.al. hukum pidana. bandung: pt. citra aditya bakti, 2011. setiyono. kejahatan korporasi. malang: averroes, 2002. sjahdeini, sutan remy. pertanggungjawaban pidana korporasi. jakarta: pt grafiti pres, 2007. soares, conceição. “can corporations be criminally responsible?” international journal of humanities and social science, march 2013, 3(6): 45-55, retrieved from http://www.ijhssnet.com/journals/vol_3_no_6_special_issue_marc h_2013/6.pdf susanto, is. kejahatan korporasi. semarang: badan penerbit universitas diponegoro, 1995. suhariyanto, budi. “pelenturan hukum dalam putusan peninjauan kembali yang diajukan oleh jaksa penuntut umum”. jurnal yudisial, 2015, 8(2): 191-207, retrieved from http://jurnal.komisiyudisial.go.id/index.php/jy/article/viewfile/52/ 45 http://www.komisihukum.go.id/article_opinion.php?mode=detil&id=25 http://www.komisihukum.go.id/article_opinion.php?mode=detil&id=25 http://www.ijhssnet.com/journals/vol_3_no_6_special_issue_march_2013/6.pdf http://www.ijhssnet.com/journals/vol_3_no_6_special_issue_march_2013/6.pdf http://jurnal.komisiyudisial.go.id/index.php/jy/article/viewfile/52/45 http://jurnal.komisiyudisial.go.id/index.php/jy/article/viewfile/52/45 236 muhtar hadi wibowo jils 3 (2) november 2018, 213-236 http://journal.unnes.ac.id/sju/index.php/jils law quote ― “corruption, money laundering, and tax evasion are global problems, not just challenges for developing countries.” ― sri mulyani indrawati minister of finance indonesia, economist 83 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 02 november 2017 jils 2 (2) 2017, pp. 83-84 issn 2548-1584 e-issn 2548-1592 editor in chief commentary legal reform in indonesia dani muhtada universitas negeri semarang (unnes) legal scholars have been discussing two important roles of law: social control and social engineering. as a social control, law is designed and introduced to control the behaviours of society members in accordance with particular values and norms agreed upon by the community. in this context, the law has a power to sanction and punish the unlawful members of society. as a social engineering, law is intended to create an ideal society in accordance with, again, particular values and norms agreed upon by the community. hence, law is not for law. law is created to serve human beings. law is introduced for the well-being of the society members. as the law is for human, and human’s situations and problems are changing, then law also needs to change and adapt to the context of the times. here, the concept of legal reform is a key. every society, including the indonesian society, sometimes needs to reform the law to make it more relevant and suitable for the needs of the society. to highlight the significance of law reform for the society, this journal volume is dedicated to discuss several issues related to the legal reform in indonesia. jhody and rodiyah, for example, discuss the ideas of poverty reduction through a public service reform. using a legal perspective, they analyze how the sragen local government has managed to reform its public services in order to reduce the poverty level in the regency of sragen. another author, winarsih, discusses how legal reform is needed to resolve current disputes in the contexts of customary law. she analyzes the contribution of 84 copyright © 2017 by postgraduate program faculty of law, universitas negeri semarang dani muhtada jils 2 (2) november 2017, 83-84 http://journal.unnes.ac.id/sju/index.php/jils the new law on village – that is, law no. 6 year 2014 on resolving the disputes occurred in the context of “desa adat”. an article by setiawan, sulistianingsih, and yudistira focuses specifically on the regulation and protection on non-traditional trademarks in indonesia. they argue that the new law no. 20 year 2016 has accommodated the ideas of legal protection on non-traditional trademarks in indonesia. yet, the problem is on the aspect of legal implementation, which according to them, needs to be resolved by the government. 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. faculty of law, universitas negeri semarang journal of indonesian legal studies 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 translation of the rpjmd for 1 (one) year period. bibliography bakti, setiawan. “pembangunan masyarakat dan perencanaan partisipatif, konsep dasar dan faktor-faktor kesuksesan”, paper, training of participatory planning, mpkd ugm and bali urban infrastructure programme (buip), 2003. beilharz, peter. teori-teori sosial. yogyakarta: pustaka pelajar, 2003. chalid, pheni. otonomi daerah (masalah, pemberdayaan, dan konflik. jakarta: kemitraan, 2012. 107 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 creswell, john.w. penelitian kualitatif & desain riset. yogyakarta: pustaka pelajar, 2014. friedman, john. empowerment: the politics of alternative development. cambridge, usa: blackwell publishers, 1992. kartasasmita, ginanjar. pembangunan untuk rakyat: memadukan pertumbuhan dan pemerataan. jakarta: pustaka cidesindo, 1996. gulick, luther. notes on the 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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 89 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. 89-102 issn (print) 2548-1584 issn (online) 2548-1592 the completion pattern of adultery case based on the customary law of sabunese gerry mario paulus, jimmy pello, aksi sinurat gerry mario paulus, jimmy pello, aksi sinurat faculty of law, universitas nusa cendana jl. adi sucipto penfui, no. 85001, kupang, nusa tenggara timur, indonesia  gery.mario25@gmail.com table of contents introduction ………………………………………………….….. 90 principles underlying the establishment of a household (the relationship with adultery case) ………………………………………………….………………... 92 customary rules related to adultery …………….. 93 settlement process ……………………………………………. 94 sabu customary sanctions ………………………………… 95 the function of customary institutions related to the settlement of adultery …………………………. 96 the factors of society prefer to settle adultery by custom …………………………………………... 98 conclusion ………………………………………………………… 100 references …………………………………………………………. 100 10.15294/jils.v4i01.26962 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) 90 http://journal.unnes.ac.id/sju/index.php/jils g. m. paulus, j. pello, a. sinurat jils 4 (1) may 2019, 89-102 article info abstract submitted on november 2018 approved on february 2019 published on may 2019 adultery, according to sabu society is relations between a man who is bound a custom matrimony or religious marriage with a woman who is bound a matrimony or one of them has bound in a matrimony. adultery, based on the positive law is ruled in article 284 of indonesian penal code (kuhp). chapter 284 kuhp has the point that a man or woman who has been married and doing adultery (overspel). the point in chapter 284 kuhp has similarity with the point in customary law of sabunese, namely adultery is conducted with someone (man or woman) who has been joined in matrimony. based on the research has been done, it found that the people of sabu is prefer to completing adultery customarily because of some factors, that is: sanction and serious fine, it is normally using the completion customarily with the people of sabu, the justice law based on the people of sabu, the effect of completion and completion pattern. two patterns of completion which appears in completion process of adultery based on the customary law of sabu is the completion pattern in kinship way which are preventing and protecting. keywords: customary law of sabu, adultery, the completion pattern of adultery, criminal law how to cite (chicago manual style) paulus, gerry mario, pello, jimmy, sinurat, aksi. “the completion pattern of adultery case based on the customary law of sabunese”, jils (journal of indonesian legal studies), 4 (1), 2019: 89-102 introduction adultery according to the people of sabu is intercourse between a man who has been bound by a marriage both a traditional marriage and a religious marriage with a woman who has been bound by a marriage or one of the parties has been bound by a marriage. adultery (satiety, huka) is an act that violates the values of politeness and obedience that can damage the kinship of the community of sabunese, therefore customary law (wolo-ku rai) also regulates the prohibition of adultery for the indigenous people of sabu. adultery according to positive law is regulated in article 284 of the criminal 91 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 code (kuhp). article 284 of the criminal code has elements of a man or woman, having married and did anything (overspel). the element in article 284 of the criminal code has in common with the elements in the sabu customary law that adultery is carried out with someone (male or female) who already has a marital bond. the offense applied in positive law is an absolute complaint offense which means that the complaint can be accepted if the complaint is committed by someone who feels aggrieved in this case a husband or wife but in customary law, the complaint is made by anyone who catches the perpetrator's hand while committing adultery, this becomes the difference between customary law and positive law (soesilo 1996). furthermore, the adultery or overspel is regulated in article 284 of the criminal code which can be categorized as one of the crimes against decency. decency offenses in the criminal code are contained in two chapters, namely chapter xiv book ii which is a crime and chapter vi book iii which includes the type of violation (bahiej 2003). those included in the group of decency crimes include actions: a. relating to drinks, which relates to morality in public and that relates to objects and so on that violate decency or pornographic nature (articles 281 283); b. adultery and others related to obscene acts and sexual relations (articles 284-296); c. trafficking of women and underage boys (article 297); d. relating to medication for abortion (article 299); e. intoxicating (article 300); f. submit children for begging and so on (article 301); g. animal abuse (article 302); and h. gambling (article 303 and 303 bis) the criminal provisions stipulated in chapter xiv concerning crimes against decency are deliberately formed by the legislators with the intention of protecting people from immoral acts and behaviors both by speech and by acts that offend morality because contrary to the views of people about sexual compliance, both viewed from the point of view of the local community and in terms of the habits of the community in carrying out their sexual lives (lamintang 1990; bahiej 2003; berlian, andrisman, warganegara 2019). as stated by wiryono prodjodikoro that morality is also about good customs, but specifically a little more about the sex of a human being. accordingly, criminal acts concerning decency offenses should only be acts that violate the norms of sexual decency which are classified as crimes against decency (dading 1982, bahiej 2003; brenner 2006). however, according to roeslan saleh, the notion of decency should not be limited to the notion of morality in the sexual field, but also includes other matters that are included in the mastery of norms in behaving in the community (nawawi arief 1996; bahiej 2003; astuti 2015; burns 2007; chirayath, sage, woolcock 2005). based on the things described above, the author feels interested in conducting further research on the pattern of settlement of adultery cases 92 http://journal.unnes.ac.id/sju/index.php/jils g. m. paulus, j. pello, a. sinurat jils 4 (1) may 2019, 89-102 according to sabu customary law. based on the background description, the problem in this research is why in the adultery case investigation, the sabunese prefer traditional examination? what is the pattern of adultery cases in sabu customary law? the research that will be carried out by this researcher falls into the category of empirical legal research. in this study the primary data collection technique that the researchers did was field research namely research conducted by examining the field directly using direct interview method. while secondary data collection techniques are carried out through library research. the data processing method in this case uses stage editing which is perfecting the answers from respondents and coding which is to rearrange regularly and systematically all the data that has been obtained. in the research method of data analysis used is descriptive qualitative, that is the entire data collected both primary and secondary data are arranged systematically, classified in patterns and themes, categorized and classified and linking one data to another after interpretation and interpretation to provide an understanding of the legal issues being studied. principles underlying the establishment of a household (the relationship with adultery case) adultery according to the community of sabunese is a sexual act committed by someone who has been bound by a traditional marriage (kenoto) against someone who is already married or who is not yet married. the people of sabu hold the principle of monogamy which means that they can only have a wife and a husband, which means that if they violate the act, it can be said that adultery is the principle. underlying the establishment of a household customary law regulates various things in life such as marriage or in a household. the establishment of a household is based on several principles. the main principle is love, without love, a household cannot work well. the following principle is an agreement and the principle of agreement covers several stages, namely: the oro li stage is the initial stage in the sabu traditional marriage ritual series, which is considered as an introductory stage between the two family families, the female family and the male family before entering the core stage of traditional marriage. maho ami stage is the second stage which is carried out in traditional marriage (kenoto) at this stage the two families discuss matters that need to be considered in the marriage event. this stage focuses more on the agreement of the two families so that there is no misunderstanding in the implementation of customary marriages. the agreement in question is about marriage dowry requirements (belis) which must be met by the male family at the time of kenoto. kenoto stage is the core stage in indigenous marriage. at the core of the conversation at the kenoto 93 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 stage, women surrender the requirements in the form of belis to the female family and the female family accepts the requirement. after kenoto is over, the bride must leave her family to follow her husband, through the pida ammu program. this ammu pida program is divided into two parts, namely the giving of advice (takka li) and the giving of ancestral food (penga’a). providing advice is carried out by parents of the bride and groom. advice given by parents to the newlyweds in order to maintain domestic harmony, such as jhe adho jhoko do ie takajha haku ama namone whose straight translation is not permissible and not good for your father's pocket but in the sense that the meaning of the advice is not to be presumptuous or not may commit adultery, if there is a mistake between you, rebuke each other do not be angry with each other (left nehala hedou pelango hedon ri hedon bhole era nepebubu dhara era), do not walk alone (bhole kako miha) (astuti 2015; crouch 2009; dake 2015). the structure of the indigenous people of sabu is divided into four people who become the adat council or in the sabu language called bangngu uudu. the main task of bengngu udu is to lead everything related to customs that take place in the community of sabunese. the adat council consists of deo rai (the highest adat leader), mone rue (the problem of cleaning up disgrace), eppu lodho lou (an incident involving the sea), eppu lodho rai (an incident that occurred on land) (haq & sumanto 2017; holzner & oetomo 2014; imanuel 2013). customary rules related to adultery customary rules are a provision that must be obeyed by every member of the community of sabunese. the rules even though not written but still obeyed and carried out, because it has become a provision agreed upon jointly. the rules relating to adultery among others are that a married man is not permitted to enter the sister's room, and vice versa a married woman is not allowed to enter the brother's room. this rule is called “takajjha haku ama namone” the meaning contained in this term is a prohibition. sabunese consider this to be a very taboo act if done, either by men or women. that is why they are given advice so that they are always as loyal as they are in a married life. this prohibition is closely related to the term medera wurumada highi and medera wurumada ei. marriage is a matter that is done on the basis of mutual liking between men and women, and needs to be maintained. based on this provision, men or women avoid behaviors that go beyond social boundaries and respect a marriage. the term medera wurumada highi for men and medica wurumada ai for women means that the blanket for men (highi) has a tassel on the lower end of the blanket which is normally used to have a limit on the ankle but if it exceeds this limit or exceeds the ankle so that it is dragged to the ground the user of the blanket will step on the 94 http://journal.unnes.ac.id/sju/index.php/jils g. m. paulus, j. pello, a. sinurat jils 4 (1) may 2019, 89-102 tassel of the blanket causing it to fall and remove the sheath. likewise the case with women who use sarong (ei) if it is used to exceed the limit, it will be stepped on resulting in falling and the sheath is released or open. when holding a wedding parents explain and enter into an agreement with the bridegroom, if the bridegroom commits an offense leaving his wife to continue to fall in love with another woman (adultery), he must bear the shame of all his family and also the shame of the family of the woman. customary fines, he (male) must kill animals in this case, pigs (wawi) and buffalo (kebhao), in customary terms the local community is called “hengebbhi pudi mekae ama nemone” (jaya 2016; masril 2014). this fine is given not for the purpose of divorce but to only cover the shame of the family or in other words as an apology from the man who commits adultery. the main purpose of the fine is to reconcile. animals that are in the form of fines can be replaced with equivalent animals, such as cattle (hapi) and horses (djara) (jaya 2016; krisnawan 2015; missa 2010) settlement process when there is a customary violation of the act of adultery, the family reports to the people in kolo tede. the people in kolo tede are assigned as opas/ police. when reporting to kolo tede, clothing and items used during adultery must be brought to opas. when they were taken to mone rue in dhara roe (house of rebellion) the two perpetrators of adultery were taken in a procession while being pelted with dried lontar seeds or commonly called saboak (wokeke) and nitas (wue kepaka) until they arrived at the door dhara roe's house fence. throwing with wokeke and wue kepaka is a punishment that must be followed so that the actions of the perpetrators do not be followed by other people. when arriving at the dhara roe yard there was a monument. the two perpetrators were told by kenuhe to sit on the monument and be given drinking sugar water which had been stored in dhara roe for decades (ei nahu gumi) (pigalao 2004; dake 2015). the provision of sugar water that has been stored for decades has the purpose of remembering their actions, as well as the agreements discussed during the traditional marriage (kenoto). during their detention in dhara roe, the 2 perpetrators of adultery will be given a sentence to process the customary land in dhara roe. the tool used to loosen the land is not using tajak (pengo’o) as the local community usually cultivates the land, but uses iron gali (uda) [the traditional land is usually processed by people who live in dhara roe]. this punishment was carried out with the aim of self-reflection and asking forgiveness from the ancestors. the length of the prison period depends on the agreement between mone rue and the family of the two perpetrators of adultery. they will continue to be held in dhara roe until the ransom is handed over by the family to redeem the perpetrator. in other 95 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 words, the length of the prison period depends on how quickly the family can obtain and hand over the ransom. the type and number of ransom animals have been established for a long time before the people of sabu recognize letters, so they cannot be negotiated (added / subtracted). the ransom that has been decided in customary law is 1 male dog, 1 rams, 1 female lamb, 1 male pig, 1 female pig, 1 male rooster, 1 female hen, 1 male buffalo, and 1 female buffalo (pigalao 2004; dake 2015). sabu customary sanctions sanctions according to the sabu are a reward that must be received by someone what if they violate customary provisions. sanctions applied in the sabu customary law are a process of restoring a condition and paying attention to the conditions of the parties. sabu's traditional sanctions include, fines, compensation, being ostracized, thrown, paraded around the village, working on customary land, and drinking sugar water for decades. the type of fine above is a guideline for the customary assembly in resolving a customary problem. fines are given to perpetrators who have committed an act of harming the public, family or personal person in the form of material or moral loss. with fines, it is expected that the community's losses will be recovered. compensation is a sanction that burdens a person who has committed acts that harm the community. excommunicated sanctions are imposed because they have repeatedly harmed and embarrassed the public. thrown, paraded, and worked on customary land and drinking water syrup for decades is a sanction that is applied in immoral issues such as adultery. sanctions are given wisely because this sanction must be in accordance with the actions taken. because sanctions are applied in addition to giving a reddish effect also to restore peace and harmony in society (pramesti 2008; raharjo 2010; rizal 2017). the purpose of customary sanctions to follow the philosophy of the indigenous people of sabu loves family relations so that the settlement of adat disputes is solely to restore the peace and harmony of society, even though they love family relationships someone who has committed adat violations must be punished according to the rules. there is a way of life that expresses the expression in sanctioning based on justice that giving sanctions is not to blame someone but to improve the situation to be better “pemola rujhara do kelekku” which means to straighten a tortuous road. the application of sanctions must be in accordance with his actions “cellphone dhui miha nehala ludu” which means that he must be responsible for the actions committed. customary law sanctions regarding the issue of adultery cannot be tolerated because adultery is a problem that can destroy the integrity of the household in accordance with the philosophy of the sabunese who love family relationships but if the relationship is damaged by a shameful act the family is severely punished. so that it becomes an example for others so as not to 96 http://journal.unnes.ac.id/sju/index.php/jils g. m. paulus, j. pello, a. sinurat jils 4 (1) may 2019, 89-102 tarnish the good name of the family (rizal 2017; susiatiningsih 2006; upara 2014). fines according to the sabu are the price of a violation committed. the phrase giving a fine must be in accordance with his actions. the fine in the community of sabunese is a fine in the form of animals. fines in the form of animals are applied if a person commits an act that is detrimental and disturbs tranquility and comfort in society. the application of fines in the form of animals consists of compensation fines, penalties to cover shame and fines that are not exceptions. compensation fines mean fines applied if someone destroys ownership from someone in this case land grabbing, damage to crops in the garden and others. this fine is applied with the aim of maintaining peace in society. the fine closes shame that the fine is applied because someone has committed an offense that defiles the sanctity of the village (upara 2014; van klinken 2014; zulfa 2010). the function of customary institutions related to the settlement of adultery in connection with the settlement of the adultery issue that has the right to complete is the adat council which holds the title mone rue, mone rue has the right to complete adultery if the two adulterous couples have their own spouses or have conducted an adat marriage. mone rue was assisted by kenuhe or commonly regarded as opas in the community of sabunese but did not forget to report the issue of adultery to deo rai. if the act of adultery is carried out by someone who is married to someone who is not married then the unmarried person is handled by a representative from mone rue, leo ko, while the married person is still brought before mone rue. mone rue was in charge of conveying the rewards or sanctions applied to the adulterous couple who were brought to dhara roe, in addition to conveying sanctions and fines, mone rue was in charge of overseeing all the processes both during the sentence and when paying fines. payment of fines in the form of animals hurry animals that are really healthy, as evidenced by the examination by kenuhe, if the condition of the animal is not healthy then kenuhe will report to mone rue and the animal must be replaced. when all customary arrangements have been carried out mone rue along with other customary councils are tasked with advising adulterous couples not to commit the same mistakes again, in addition to the advice given to maintain the integrity of each household even though this adultery is a matter that cannot be tolerated but with sanctions and fines can stabilize the relationship between families so that the act of adultery can be forgiven. 97 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 1. sabu obedience to sabu customary law legal obedience according to the sabunese is obeying the rules that have been established together for a long time by traditional elders. legal obedience is not free from legal awareness, and good legal awareness is law obedience, and good legal unconsciousness is disobedience. statutory observance must be juxtaposed as a cause and effect of legal awareness and obedience. obedience of the sabunese has the characteristic that the law is obeyed not because of fear of sanctions or fines that will be given by customary law but that obedience arises because the sabunese feel that customary law contains values that are in accordance with the culture and lifestyle of the sabunese who hold family. obedience is also inseparable from the morals possessed by the sabunese, obedience is an obligation that must be carried out but for the sabunese, obedience is not an obligation but a lifestyle that is in accordance with the values that live in the community of sabunese and beliefs rooted in the heart so able to control the behavior and actions of adherents from negative traits. besides that, there are also because materially and formally, customary law comes from the community itself, or is the will of the group. therefore, the legal compliance will remain as long as the group's will is acknowledged and upheld jointly, because this group’s will causes the moral obligations of the community to arise and be maintained. legal awareness and compliance, there is a fairly fundamental difference between customary law and positive law. the awareness of indigenous peoples towards good and bad norms is voluntary as a result of moral obligations. basically customary law is obeyed because customary law comes from the community itself. the consequence is that people must obey these rules, in accordance with the soul and sense of justice that is owned by the community, and has legal consequences which if not adhered to will cause sanctions for the perpetrators. 2. customary behavior of sabunese customary behavior is an activity or activity of indigenous peoples which is a response to the customary symptoms that occur (astuti 2015; chirayath, sage, woolcock 2005). customary symptoms include the rainy season (performing a ceremony in the rainy season which means thanksgiving), ceremonies in the dry season (ceremonies asking for rain), customary violations (repellent ceremony or disgrace) and others. the customary behavior of the sabunese as in the principle of life of the sabunese is to maintain the integrity of kinship or kinship, so the customary behavior is divided into: 1) customary behavior to understand each other it is the behavior shown at the time of solving the problem that the sabunese know what is happening, how to resolve it in the best way and be familiar with the customs of the sabunese. 98 http://journal.unnes.ac.id/sju/index.php/jils g. m. paulus, j. pello, a. sinurat jils 4 (1) may 2019, 89-102 2) customary behavior for mutual trust customary behavior to trust each other means the behavior shown when resolving problems, the people of sabu entrust the whole solution to the problems faced by indigenous elders. 3) customary behavior to help each other customary behavior to help each other means that the traditional behavior shown by the people of sabu in solving problems is not only the responsibility of a person but a joint responsibility, so to resolve the need for cooperation. the above behaviors stated that in resolving a problem, the sabunese cling to the principle of kinship, namely joint ownership so that if a problem occurs, the problem is resolved together. this is because what is experienced by the people of sabu is only understood by the people of sabu and resolved by the sabunese themselves in this case the cooperation between indigenous elders and the community. the factors of society prefer to settle adultery by custom the settlement of adultery by custom is a priority for the people of sabu, because the people of sabu feel that the settlement process is traditionally very familiar with the traditions of the sabunese, as well as the justice and legal certainty of the people of sabu. familiarity means that life in the community of sabuneseis a unity that cannot be separated because the community of sabunese adheres to a kinship system based on lineage and region. each lineage has a system of problem solving that is made and agreed upon so that the sabunese are more familiar with the settlement system traditionally not with the exception of adultery. there are also factors that cause the people of sabu to choose to complete adultery based on customary law: 1) heavy penalties and penalties heavy penalties applied in sanctions against perpetrators of adultery were chosen because the sabunese considered that by giving heavy penalties the perpetrators of adultery would not repeat the act of adultery by themselves. this is evidenced by the expression "lai ju, lai bhale pa no" meaning that the punishment applied in accordance with the action. the punishment of committing adultery is severe because the sabunese consider the act of adultery to be detrimental to the kinship in the family as evidenced in the phrase "pemekae ama namone" or embarrassing the family. 2) the familiar settlement of adultery in sabu customary law "lai no lai in lemma" is an expression that shows the familiarity of customary law with the community of sabunese which means that the 99 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 problem is our problem as well so it must be resolved by us too. customary settlement is very much in accordance with the prevailing customs and in accordance with the principles of the sabu’s life that is family. this means that in the settlement of the sabunese do not regard the perpetrators as enemies or opponents but as their own children, grandchildren or relatives, this is evidenced by the expression "pedu rupara due". literally it means connecting two palm leaves from two trees that grow close together. the leaves of the lontar tree symbolize two people (male and female large families symbolized by palm trees. if there is a problem and then one who finishes it is the family itself. because the sabunese adopt a patrilineal kinship system so the relationship between the sabunese is very close. that can solve the problem fairly in the family of sabunese is the family itself. 3) the context of legal certainty according to the sabunese the views of the sabunese on the legal certainty in the sabu customary law is that an offense must be punished not allowed, but must look at the customary provisions that apply. although not written, legal certainty according to the sabunese is the observance of the community against the customary law itself. legal certainty is also according to the sabunese that a person is ensnared by a customary dispute in this case adultery. then the adulterer who is married must pay a fine including 9 (nine) animals. nine animals are fines that absolutely must be paid with the same value. the value of these fines is considered by the people of sabu to contain a certainty, although it is dynamic, but the fine value has never changed. the phrase "nadu we do tao hala pemaja nga wolo uku rai" contains a legal certainty which means anyone who does wrong still faces customary law. in addition to the value of fines, legal certainty in the community of sabunese also does not consider one's status in applying customary law. 4) legal justice according to the community of sabunese justice according to the people of sabu is a condition that shows a truth about a thing. the people of sabu consider justice to be an act that must be accounted for before the almighty. the phrase "lai ju, lai bhale pa no" which means what is done is also to be received, the purpose of the phrase is that in applying the punishment must be in accordance with the actions taken, this is the principle of justice adopted by the people of sabu. justice in the community of sabunese can create a balanced situation, in addition to creating balance in the community of sabunese, justice is also a way to reconcile the parties to the dispute. 100 http://journal.unnes.ac.id/sju/index.php/jils g. m. paulus, j. pello, a. sinurat jils 4 (1) may 2019, 89-102 conclusion based on the description described in the previous chapters, authors emphasized that the process of the customary settlement in the case of adultery dultery is chosen because customary law contains values that are in accordance with the behavior and habits of the community of sabunese, certainty and justice in accordance with the customs that apply in the methamphetamine society, the impact of the settlement process which ends not divorced and settlement pattern that prioritizes family relationships. based on the research conducted by the authors on the pattern of settlement of adultery cases according to sabu customary law, the pattern that emerges in this settlement is a pattern of family settlement consisting of the nature of preventing and protecting every member of the community and aiming to improve the original condition which does not lead to divorce as a pattern of settlement according to positive law. authors suggest that it is expected that the government can adopt customary law as a regional regulation in order to avoid the polemic between customary law and state law, so that in the settlement process it does not ignore state law. the sabu customary law community is expected to be able to maintain the customary law and existing values as a means in the settlement process of customary disputes that occur. the community is expected to be able to provide teaching to the next generation regarding the values that already exist in the methamphetamine society so that the prevailing customs and rules can be maintained from 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………………………………………………….….. 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 of criminal acts committed by their employers. the international convention on the protection of all rights of workers of migrant workers and members of their families is currently not effectively implemented, as an effort to protect 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http://www.bnp2tki.go.id/uploads/data/data_12-11-2018_022944_laporan_pengolahan_data_bnp2tki_2018_-_oktober.pdf http://www.bnp2tki.go.id/uploads/data/data_12-11-2018_022944_laporan_pengolahan_data_bnp2tki_2018_-_oktober.pdf https://lib.unnes.ac.id/21922/1/8111411092-s.pdf http://www.ilo.org/global/topics/labour-migration/lang–en/index.htm http://www.ilo.org/global/topics/labour-migration/lang–en/index.htm https://www.iom.int/jahia/webdav/shared/shared/mainsite/published_docs/final-lm-report-bahasa-indonesia.pdf https://www.iom.int/jahia/webdav/shared/shared/mainsite/published_docs/final-lm-report-bahasa-indonesia.pdf 304 anis widyawati jils 3 (2) november 2018, 291-304 http://journal.unnes.ac.id/sju/index.php/jils law no. 39 of 2004 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 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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 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 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) 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. 175 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. 175-194 issn (print) 2548-1584 issn (online) 2548-1592 the immigration crime and policy: implementation of ppns authorities on investigation m. alvi syahrin m. alvi syahrin directorate general of immigration, jakarta immigration polytechnic, jakarta  ma.syahrin@gmail.com table of contents introduction …………………………………………………….. 176 general overview on law enforcement on immigration cases in indonesia …………………………... 179 the role of immigration civil servant investigators in investigating immigration crime according to law number 6 of 2011 ………............ 183 the obstacles faced by ppns of immigrations on conducting immigration crimes investigations .. 189 conclusion ………………………………………………………… 191 reference ………….……………………………………………….. 192 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:ma.syahrin@gmail.com 176 m. alvi syahrin jils 3 (2) november 2018, 175-194 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on june 2018 approved on september 2018 published on november 2018 immigration crime and criminal law are one of the interesting studies not only seen in terms of law enforcement but also criminal law politics and authority arrangements in immigration. for indonesia, the problem of immigration is a challenging problem, not because it is only the location of indonesia that is vast and has many access points for immigrants, but also the authority between institutions. article 105 of law number 6 year 2011 on immigration, states that the immigration civil servant investigator is authorized as an immigration criminal investigator conducted in accordance with the provisions. the results of this study are: (1) enforcement of immigration law conducted one of them with the investigation of perpetrators of violations of the immigration act. the process of investigating the perpetrators of violation of immigration law is based on the provisions of the criminal procedure code as lex generalis and immigration law as lex specialis. in this research, law enforcement has been carried out in order to participate in trading fake immigration/passport travel documents by providing unauthorized data or incorrect information to the immigration officer to obtain travel documents of the republic of indonesia for himself, (2) in implementing immigration law enforcement function there are still obstacles faced immigration civil servant investigator include low knowledge, lack of operational fund, lack of public participation in reporting the existence of foreigner in their environment, weakness of coordination with other law apparatus and obstacle from law factors. keywords: law enforcement, civil servant investigators, immigrations, ppns how to cite (chicago manual style) syahrin, m.alvi. 2018. “the immigration crime and policy: implementation of ppns authorities on investigation”, journal of indonesian legal studies (jils), 3 (2): 175-194. introduction the increasing information and transportation technology today has led to an increase in migration flows between countries that can have positive and negative impacts. positive impacts include the modernization of society and encouraging economic growth of a country, the negative impact of migration 177 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils flows is the emergence of immigration criminal acts such as people smuggling (syahrin 2017; francis and maguire 2016; kosandi, subono, susanti and kartini 2017), 1 forgery of immigration documents and abuse of immigration permits (gonzalez, collingwood, and el-khatib 2017). 2 even today immigration crimes are more developed than those that are not organized into an organized crime (santoso 2004; adelman, reid, markle, weiss and jaret 2017). in terms of maximizing the positive impact and minimizing the negative impacts of migration flows to and from the indonesian territory, good immigration law enforcement is needed and capable of providing a deterrent effect for immigration criminals, thereby reducing the negative impact of migration flows. lately the mass media often presents coverage on the rampant smuggling of people, the sale of babies abroad (mcnevin, missbach, and mulyana 2016) 3 , forgery of passports and visas, citizenship problems, abuse of immigration permits and various types of transnational crimes which are all classified as immigration. at the soekarno-hatta class i immigration office as an immigration examination place (tpi), violations and crimes in the immigration sector are often found, but unfortunately there are still many cases that arise that cannot be appointed to the court level. broadly speaking, this is due to the high choice of the administrative action process of the organizational structure that has not supported the investigation of immigration crimes and lack of coordination between police investigators and civil service investigators (ppns) in the immigration field. so that the act of investigation as law enforcement in the field of immigration is still not an option even though law number 6 year 2011 concerning immigration has regulated criminal provisions and enforcement of criminal law by referring to law number 8 of 1981 concerning criminal law procedure (ihsan 2016). the process of investigating alleged immigration crimes is a series of investigator's actions to find and collect evidence, with evidence that makes it clear about the alleged immigration crime that occurred and in order to find the suspect, in terms of and according to the method stipulated in the criminal procedure code (directorate general of immigration 1995). the authority to investigate the alleged immigration crime is not only carried out by the indonesian police investigators but also by immigration civil servant investigators who are specifically authorized as investigators as referred to in article 6 paragraph (1) letter b of the criminal procedure code, namely certain civil servants officials given special authority by law which becomes their legal basis. plus the public's understanding of immigration crime is still 1 in the same context, the people smuggling is close to immigration criminal cases. 2 the cases of immigration, as well as refugee, in many cases related to the document, ilcnuding abuse of immigration permit. 3 this context, explained that control and management in immigration is very important thing not only to maintain but to prevent, protect the basic rights of human, and provide legal justice and certainty. 178 m. alvi syahrin jils 3 (2) november 2018, 175-194 http://journal.unnes.ac.id/sju/index.php/jils lacking. so far, the understanding of immigration crime has not been too popular in the community. but the problem is a little different nowadays (ozden et.al. 2016), 4 where reforms are being carried out and the process of completing the practices of corruption, collusion, nepotism and other law violations is becoming a phenomenon awaited by the public, with the conditions in the field of immigration crime increasingly prevalent. measures to eradicate immigration crime have been carried out by the government for many years, including changing and adding regulations on immigration offenses. however, all efforts made are still not as successful as expected. in view of the legal awareness of the community at this time the legal awareness of the community to obey or comply with legal regulations in the field of immigration is still weak. in terms of criminal law, the task of eradicating immigration crimes is the duty of law enforcers who use legal means, the authority to investigate immigration crimes was previously carried out by the indonesian national police (polri) but the immigration crime continues. the lack of understanding of immigration crime has a negative impact on the application of regulations regarding immigration crime, so that in the implementation there are still gaps where in the implementation of immigration criminal investigations it is possible to have three settlement investigations (ihsan 2016), namely: 1. immigration crime is handled by two investigators so that there are two case files for the same case; 2. immigration crime is handled by one of the investigators; 3. immigration crimes are not handled because each investigator hands off. immigration civil servant investigator is an investigator authorized to carry out an investigation into immigration crime according to law no. 6 of 2011. as an investigator authorized to handle immigration criminal acts has a heavy duty to be able to handle immigration crime this is due to the dualism of understanding contained in law no. 6 of 2011, concerning investigators authorized to handle immigration crime, plus public understanding of immigration crime that is still lacking so that it demands an increase in the capability and professionalism of immigration civil servant investigators. immigration ppns in carrying out their duties in the immigration field other than subject to law no. 6 of 2011 also complies with law number 8 of 1981 concerning criminal procedure law and other laws and regulations. therefore, muladi (1995) emphasized that there is a need for synchronization 5 in enforcing criminal law in the indonesian criminal justice system. 4 in the thesis of caglar ozden et.al emphasized that in some cases, immigration case affect some crimes not only related to immigration crimes, but other crimes. 5 according to muladi, synchronization or simultaneously in structural terms (structural synchronization), substantial (substantial synchronization) and can also be cultural (cultural synchronization). 179 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils in its development, three immigration function can be said to experience a shift that the notion of functions of security and law enforcement is an integral part because the application of law enforcement in the immigration field means the same or identical to creating conducive security conditions and vice versa in order to maintain conducive security conditions. automatic immigration law enforcement functions must be carried out continuously and consequently. while the new function, namely as a facilitator of development is an integral part of other immigration functions (santoso 2004). civil servant investigators (ppns) at the immigration office have a very important duty and role in the effort to deal with immigration crimes that aim to eradicate immigration crime. however, this task and authority in its implementation often encounter obstacles both from legal regulations governing immigration crime and often the authority collides with the authority possessed by law enforcement agencies such as police investigators. general overview on law enforcement on immigration cases in indonesia according to normative studies, law enforcement is an action to apply the law to an event, which can be likened to drawing a straight line between two points. in law, this method is referred to as an automatic engine model and the work of enforcing the law becomes an automatic subsidy activity. here law is seen as a clear and definite variable and looks very simple. in reality it is not that simple but what happens is that law enforcement contains choices and possibilities, because it is faced with a complex reality. in normative law, complexity is ignored, whereas legal sociology as empirical science can by no means ignore it (raharjo 2002). meanwhile, in conceptually, soekanto (1980) stated that the core and meaning of law enforcement lies in the activities of harmonizing the relationships of values outlined in solid and manifesting rules and actions as a series of final stages of value translation, to create, maintain and maintain social peace of life. furthermore, according to soekanto, so that law enforcement can run at least four factors must be fulfilled. 1. the rule of law or regulation itself; 2. officers who implement or enforce; 3. facilities that are expected to be able to support the implementation of legal procedures; 4. people affected by the scope of the regulation. the four factors must have a harmonious relationship and the lameness of one element will result in the entire system being negatively affected. satjipto raharjo argues that the elements involved in the law enforcement process are divided into two major groups, namely elements that have a degree of involvement that is rather far and close. an example of an element that has close involvement with the law enforcement process is the 180 m. alvi syahrin jils 3 (2) november 2018, 175-194 http://journal.unnes.ac.id/sju/index.php/jils legislature or legislator and police, while the personal and social elements have far-reaching involvement (raharjo 2002). according to satjipto raharjo, law enforcement is a process to realize legal wishes into reality. what is referred to as legal desires here are the thoughts of the legislature formulated in the legal regulations. the success of the law enforcement process is very dependent on law enforcement official itself (raharjo 2002). law enforcement seen from a normative perspective is indeed a very simple problem, but when viewed from a sociological perspective, law enforcement is a long process and is a struggle, as stated by arief (2001), that law enforcement and justice is a series of processes that are quite long and can involve various authorities of other law enforcement agencies (in the field of criminal law enforcement involving investigating/police officers, prosecutors' public prosecutors, court officials, and criminal implementing apparatus). furthermore, marpaung (1997) explained that law enforcement did not take place in a vacuum or social vacuum. what is meant by social emptiness is the absence of outside legal processes that simultaneously take place in society. these processes are like economics and politics. law enforcement takes place in the midst of these processes. with the issuance of the law, for example, it will not immediately become exactly what the law requires. competitive relations, attraction and push to push between the law and other fields and processes outside it still occur. in line with what was stated by leden marpaung, marc galanter also emphasized that law enforcement was not as simple as we thought, but rather that law enforcement contained choices and possibilities, because it was expected to be a complex reality (raharjo 2002). in normative law complexity is ignored, whereas as empirical science cannot ignore it. legal sociology departs from the reality in the field, which is to see the various realities, complexities that exist in society and how they form the intention by looking at the law from the “other end of the telescope”. because of incorporating this complexity into its understanding and analysis, in legal sociology, law enforcement is not universally logical, but rather a variable. the importance of the elements contained in the law enforcement process seems to play a dominant role, as stewart macaulay's research on the enforcement of contract laws that have been self-made by the perpetrators is largely excluded, business relations between actors are not always based on contracts that have been made by yourself. relationships that are supposed to be contractual but have turned out to be non-contractual, because it turns out that non-contractual nature is more beneficial for both parties in conducting business relations (raharjo 2002). furthermore, according to muladi, law enforcement is an effort to uphold norms and at the same time the values behind the norm. for this reason, law enforcers must fully understand the spirit of the law that underlies the making of the legal regulations to be enforced (muladi 1995). law enforcement officials must realize that law enforcement as a sub-system of a 181 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils broader system is vulnerable to environmental influences, such as the influence of political developments, economics, education, and globalization. therefore, understanding or the need for togetherness and collaboration between components described as a system approach in the criminal justice system should be implemented in each component or law enforcement apparatus. the criminal justice system is a system in a society to tackle the problem of crime. the components in the criminal justice system are expected to work together to form what is known as integrated criminal justice administration (reksodiputro 1994). romli atmasasmita in this case also underlined that the criminal justice system means interconnection between the decisions of each relevant institution in the criminal justice process. in other words, the criminal justice system, in which there is a systemic movement of its supporting subsystems (as stated above), which as a whole seeks to transform inputs into outputs that are the objectives of the criminal justice system, namely the term goals short in the form of re-socialization of actors, medium term is prevention, and long term is social welfare (atmasasmita 1996). to achieve these goals, according to muladi, the criminal justice system is strongly influenced by the community environment and the areas of human life. therefore, the criminal justice system in its motion will always experience interaction, interconnection, and interdependence with its environment in the fields of economics, politics, education, technology, and subsystems of the criminal justice system (atmasasmita 1996). then furthermore, related to the enforcement of immigration law, in the decree of the minister of law and human rights of the republic of indonesia no. m.04.pr.07.10 dated 7 december 2005 concerning the organization and work procedure of the department of law and human rights of the republic of indonesia that the sub directorate of immigration investigation is under the directorate of immigration investigation and enforcement within the directorate general of immigration. the subdirectorate of immigration investigation oversees three sections, namely: region i investigation section, region ii investigation section, and immigration civil servant investigator section. the sub-directorate of investigation is led by a chief, who is as close to echelon iii (iii / a) and for the section-section led by the head of the same level as echelon iv (iv / a). in carrying out the duties, section heads are responsible to the head of the immigration investigation sub-department. while the head of the investigation sub-directorate is directly responsible to the director of immigration investigation and enforcement who leads the directorate of immigration investigation and enforcement who leads the directorate of immigration investigation and enforcement where the position is equal to echelon ii (ii/a). while the authority of the immigration investigation sub-directorate is related to the preparation of materials for drafting policies, conducting guidance and technical guidance in the field of immigration criminal 182 m. alvi syahrin jils 3 (2) november 2018, 175-194 http://journal.unnes.ac.id/sju/index.php/jils investigations and immigration civil servant investigators, and conducting investigations. regarding the requirements for the appointment and appointment of ppns, it is regulated in government regulation number 27 of 1983 concerning the implementation of the criminal procedure code. article 2 paragraph (1) letter b of the government regulation stipulates that the investigator is: “certain ppns which have at least the level i young regulator (group ii/b) or are equated with it”. in paragraph (5) it is determined that the ppns is appointed by the minister of law and human rights at the suggestion of the department in charge of the civil servants. the main tasks and functions of the sub-directorate of immigration investigation based on article 610 of the decree of the minister of law and human rights of the republic of indonesia no. m.03.pr.07.10 dated 7 december 2005 concerning the organization and work procedure of the ministry of law and human rights of the republic of indonesia, clearly written the main tasks of the sub-directorate of immigration investigation. the main tasks of the sub-directorate for immigration investigations are: 1. preparation of policy drafting; 2. guidance and technical guidance in the field of immigration criminal investigation; 3. investigator of civil servants in the field of immigration; and 4. investigation of immigration crime. in carrying out the above main tasks, the sub-directorate of immigration investigation functions: 1. guidance and technical guidance in the field of immigration crime and immigration ppns investigation; 2. investigation; 3. preparation of materials for preparing draft policies. regarding the position of immigration civil servant investigators as part of law enforcement institutions, the rationale for civil servants to become civil servant investigators must fulfill the requirements specified in the regulation of the minister of justice number: m-05.pw.07.03 of 1984 concerning appointment of appointments and dismissal of civil servant investigators as mentioned in article 1, namely: 6 1. civil servants have the lowest rank of level 1 young regulators (group ii / b) who work in the field of investigation in accordance with the law which becomes their respective legal basis; 2. education as low as a high school or specially educated in the field of investigation or specifically in the field of operational technical or at least 2 (two) years experiences in the operational technical field. in the appointment the priority is for civil servants who attend special education in the field of investigation; 6 article 1 regulation of the minister of justice of the republic of indonesia no. m05.pw.07.03 of 1984 concerning implementation guidelines for the appointment and dismissal of civil servant investigators, jakarta, 1984. 183 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils 3. the evaluation list for the implementation of civil servants' work (dp3) for 2 (two) consecutive years must be filled with good and able-bodied values stated by the doctor's statement. then after the civil servants are appointed as investigators of civil servants assigned to enforce criminal law regulations, as explained by remmelink (2003) which include: 1. orders and prohibitions on violations against them by organs declared to be authorized by law are related to (threat) criminal; norms that must be obeyed by anyone too; 2. provisions stipulating what facilities can be utilized as a reaction to violations of penitentiary legal norms or more broadly, namely the law on sanctions and rules that are temporally or within a certain period of time set limits on the scope of work of the norms. that way, criminal law should be aimed at enforcing legal order and protecting the legal community. the role of immigration civil servant investigators in investigating immigration crime according to law number 6 of 2011 1. enforcement of immigration law: what should be done? friedman and hayden (2017) argued that the effectiveness and success of punishment depends on the reality of law enforcement. this is very much related to the legal elements, namely the structure of law (structure of the law), legal material (substance of the law), and culture of law (legal culture) in society. the legal structure concerns law enforcement officers, then legal material includes the legislation, and legal culture is the living law adopted in a society, about friedman’s legal structure explaining: to begin with, the legal system has the structure of a legal system consist of elements of the kind, the number and size of court; their jurisdiction...., structure. also means how the legislative is organized..., what procedures the police department follow, and go on, structure is a way is a kind of cross section of a legal system... a kind of still photograph, with free the action. this means that the structure of the legal system consists of the following elements, the number and size of the court, its jurisdiction (including the types of cases they examine), and procedures for appealing from other courts to courts. the structure also means how the legislature is organized, what may and may not be done by the president, what procedures are followed by the police and so on. so the legal structure consists of existing legal institutions intended to carry out existing legal instruments. an understanding of legal substance is as follows: 184 m. alvi syahrin jils 3 (2) november 2018, 175-194 http://journal.unnes.ac.id/sju/index.php/jils another aspect of the system is this substance. by this means the actual rules, norms behavioral patterns of people inside the system ... the stress here is on living law not just rules in law goods (friedman and hayden 2017). another aspect of the legal system is the substance. what is meant by substance is the rules, norms and patterns of real human behavior in the system. so the legal substance concerns the applicable laws and regulations that have the power that binds and becomes a guideline for law enforcement officers. in addition to the need for synchronization in the structural and substantial terms between civil servant investigators and police investigators, in conducting investigations it is also necessary to have coordination. according to ricky w. griffin, mentioning the meaning of coordination is “coordination is the process of the activities of the various departments of organization” (griffin 1987). the legal system and coordination are closely related to the enforcement of immigration law, which is reflected as follows: a. law enforcement in the field of immigration according to law no. 6 of 2011 and law no. 8 of 1981 seen in normative juridical aspects, and; b. law enforcement in the field of immigration by looking at the empirical juridical aspects of the structure of immigration law enforcement and the culture of immigration law enforcement. immigration crime continues and can disrupt security and order stability, even though law no. 6 of 2011, the lack of care of the public about the notion of immigration crime is a challenge for ppns immigration in enforcing the law and combating immigration crime. the nature of immigration itself is a series of activities in the provision of services and law enforcement as well as safeguarding the traffic in and out of people from and into the territory of the republic of indonesia operationally the immigration role can be translated into concepts of the three immigration functions (syahrin 2018; wahyuddin 2018; ousey and kubrin 2018). this concept would like to state that the immigration system, whether viewed from the culture of immigration law, legal material (legal regulations) on immigration, immigration law facilities and infrastructure, must always contain tri functions, namely: 1. the function of community service. the function of administering government or state administration that reflects aspects of service, from that aspect immigration is required to provide excellent service in the field of immigration to both indonesian citizens and foreigners; 2. the function of law enforcement. in carrying out immigration duties, the entire immigration law is enforced to everyone who is in indonesian jurisdiction, whether indonesian citizen or foreign national. operationally the law enforcement carried out by immigration institutions also includes the refusal to grant entry permits, leave permits, 185 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils immigration permits, all of these are forms of investigative law enforcement, namely the authority to conduct immigration criminal investigations; and 3. security function. immigration functions as the guardian of the gates of the country, said so because immigration is the first and last institution in screening the arrival and departure of people in and out of the territory of indonesia. the implementation of security functions addressed to foreigners is: a. selection of every intention of the arrival of foreigners through checking visa applications; b. collaborating with other state security apparatus, especially providing supervision regarding enforcement of immigration law; c. carry out intelligence operations for the benefit of state security; and d. carry out prevention and deterrence. related to the duties and functions of investigators of immigration civil servants, article 105 of law no. 6 of 2011, states that the immigration officer civil servants (ppns) is authorized as an immigration criminal investigator carried out in accordance with the provisions of this act. ppns is given special authority as an investigator as referred to in law no. 8 of 1981 to conduct immigration criminal investigations. in accordance with the provisions of article 107 of law no. 6 of 2011 that in conducting an investigation, the immigration ppns coordinates with the indonesian national police investigator, the form of coordination and supervision is stated in article 107 paragraph (1), paragraph (2) and paragraph (3) of the criminal procedure code, namely: article 107 paragraph (1) for the purposes of investigation, the republic of indonesia police investigator provides instructions to civil servant investigators and provides necessary investigative assistance. article 107 paragraph (2) civil servant investigators report to the indonesian national police investigator about a criminal offense being investigated, if from the investigation by civil servants there is strong evidence to file a criminal offense against the public prosecutor. article 107 paragraph (3) if a civil servant investigator has finished conducting an investigation, the results of the investigation must be submitted to the public prosecutor through the indonesian police investigator. 186 m. alvi syahrin jils 3 (2) november 2018, 175-194 http://journal.unnes.ac.id/sju/index.php/jils the immigration civil servant investigator has authority in accordance with the law which is the legal basis and in his duties is under the coordination and supervision of the national police investigator. immigration actions cover four aspects of activities, namely: 1. processing the results of supervision and/or investigation. the findings of violating the law resulting from supervision and evidence of investigation, processing and sorting according to the nature and type of violation, to determine the appropriate immigration action against the lawbreaker. 2. examination. examining suspects, sanctions and evidence of the results of supervision by making an official report. whereas the results of investigations and cases that have received a verdict and are of permanent legal force, no need for further examination, only identification of former convicts is required by referring travel documents. letters or other documents and judges' decisions, so that they are not mistaken in implementing immigration actions. 3. enforcement. carry out an administrative legal action against people who do not obey the rules and or carry out activities that are harmful to security and public order, consisting of: a. indonesian citizens, in the form of block, refusal to leave the territory of indonesia, revocation and other matters relating to travel documents of the republic of indonesia; b. foreigners, in the form of blockage, refusal to enter and enter indonesian territory, expense of expenses, deportation, quarantine, restriction / cancellation / change of permit of existence, prohibition of being in one or several places, the necessity of residing in a certain place; c. the person in charge of transport equipment, in the form of: expense of expenses, bringing back foreigners who are not given permission to enter, foreigners who are not given entry permits to remain or be isolated on transport equipment. 4. completion and submission of case files is the final activity of the immigration criminal investigation process. as a basis for considering the settlement and submission of case files is the result of examination of suspects and expert witnesses and their completeness has fulfilled the elements of immigration crime. case settlement activities consist of: a. making a resume. making a resume is an immigration ppns activity to compile summaries and conclusions based on the results of an investigation into an immigration crime that occurred. b. preparation of the contents of case files. in conducting an investigation, the immigration ppns is legally responsible for the acts of investigation carried out in accordance with applicable laws and regulations while official responsibilities are carried out hierarchically in this case the director general of immigration can provide guidance, direction and support for investigative activities in the context of 187 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils conducting investigative duties immigration crime. immigration ppns is also required to coordinate with relevant government agencies and agencies in carrying out the supervisory duties on the activities and presence of foreign citizens, including the ministry of foreign affairs, the ministry of home affairs, the department of defense and security, the ministry of manpower, the attorney general's office and even with the state intelligence agency (bin) (atmasasmita 1997-1998). the provisions of the enforcement of criminal law in the field of immigration have two ways of resolving immigration criminal acts, namely through immigration actions and through judicial pros. violations and crimes in the field of immigration must be prevented and eradicated through law enforcement in the field of immigration. in formal juridical immigration is any act that violates immigration regulations in the form of crimes and violations that are threatened with criminal penalties as stated in law no. 6 of 2011 which explains the provisions of immigration crime in the form of crimes and immigration criminal acts in the form of violations, namely for immigration crime regulated in article 113 to article 136 of law no. 6 of 2011. 2. investigation by immigration civil servants in case of violating immigration law with suspect kou tsung teng a. knowing criminal acts based on the theory, there are several ways investigators know of a crime, which includes: 1) report 2) complaints 3) self-known by investigators 4) media coverage in the case of violating the immigration act with the suspect kou tsung teng, immigration civil servant investigators (ppns) learned of a violation of the immigration act. b. case brief on monday, november 21, 2011, where kou tsung teng had submitted a passport issuance application on his own behalf, attaching data as administrative requirements in the form of ktp, family card, birth certificate in the name of herry, and marriage deed on behalf of willi and marshanda . based on the above, the investigator was suspicious of the validity of the documents submitted by kou tsung teng, then the investigator conducted a more intensive examination of kou tsung teng, and in the investigation found the fact that kou tsung teng was a foreign national, a citizen of taiwan as evidenced by the taiwan national passport number: 303672531 which kou tsung teng showed to the immigration office. based on the foregoing, because the documents submitted by kou tsung teng were alleged to be fake or falsified, kou tsung teng still held a passport, so kou 188 m. alvi syahrin jils 3 (2) november 2018, 175-194 http://journal.unnes.ac.id/sju/index.php/jils tsung teng was subject to immigration administrative measures, in this case the deportation of kou tsung teng. and while waiting for the deportation process against kou tsung teng, the central jakarta immigration office places kou tsung teng in the central jakarta immigration office i detention room based on the determination order number: w7.fc.gr.01.02.0412,412 november 21, 2011 and minutes of determination on november 21, 2011. that furthermore because the implementation of repatriation (deportation) of kou tsung teng to his home country will be carried out, the immigration office has issued kou tsung teng from the detention room based on the decree of expenditure expenditure number: w7.fc.gr.01.02.10.4 dated november 25 2011 and the minutes of expenditures from the detention room on november 25, 2011. furthermore, kou tsung teng was released from the detention room on november 25, 2011, but based on an intensive examination of kou tsung teng who was allegedly committing a criminal act as regulated and threatened with crime according to the provisions of article 126 letter c law no. 6 of 2011 concerning immigration jo article 55 of the criminal code, for the purpose of further examination issued an investigation order number: 01/spp/ix/2011/dikkim dated november 25, 2011, and the immigration office has subsequently arrested kou tsung teng based on the letter arrest order number: 02/spkap/xi/2011/dikkim dated november 25, 2011. whereas in the examination of kou tsung teng, immigration has found several evidences that were suspected of being fake or falsified, among others in the form of ktp, family card, birth certificate in the name of herry, and marriage certificate in the name of willi and marshanda, as well as objects directly related with a criminal offense allegedly committed by kou tsung teng in the form of a taiwan national passport number: 303672531 in the name of kou tsung teng. so it should be suspected that kou tsung teng had committed immigration criminal acts based on the provisions of article 126 letter c of law no. 6 of 2011 jo. article 55 of the criminal code. therefore the immigration has confiscated the evidence, namely based on the confiscation order number: sp2b2/01/xi /2011/dikkim dated november 25, 2011 with the minutes of confiscation on november 25, 2011. that in addition to the above description along with the inspection process, it was also found the fact that kou tsung teng's residence permit had expired, while at the same time, kou tsung teng had allegedly committed a criminal act as regulated and threatened by criminal provisions in article 126 letter c uu no. 6 of 2011 jo. article 55 of the criminal code. that based on the extension letter of detention from the respondent's entity number b25 / 0.1.10 / ep2 / 01/2012 dated 09 january 2012, a brief description of the case stated “on monday 21 november 2011 at the class i immigration office, central jakarta, the suspect kuo tsung teng commits a criminal offense as well as trades blank fake immigration / passport travel documents by providing invalid data 189 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils or incorrect information to obtain the travel documents of the republic of indonesia for himself, violating article 126 letter c of law no. 6 of 2011. the central jakarta immigration office has submitted several proofs of documents. from the aforementioned subject, the suspect kuo tsung teng submitted a pre-trial, but the panel of judges had decided or tried: 1) refuse the application for kuo tsung teng (applicant) for the whole; 2) declare arrest of kuo tsung teng (applicant) based on arrest warrant no. 02 / spkap / xi / 2011 dated november 25, 2011 is lawful; 3) declare the detention of kuo tsung teng based on detention order no. 01 / sph an / xii / 2011 / dikkim dated 20 december 2011 and an extension of detention letter number: b-2 / 0.1.10 / ep.2 / 01/2012 dated 9 january 2012, is lawful; 5) declare seizure letter no. sp2b2/01/xi/2011/dikkim dated november 25, 2011 is lawful; 6) charging kuo tsung teng for paying court fees of zero. for the sake of supremacy and law enforcement and safeguarding the authority of the state, including the authority of the state gate apparatus, then foreigners who abuse immigration permits are subject to legal actions in the form of: 1) acts of criminal law, through a series of investigative actions in the criminal justice system process, then after completing the criminal procedure, followed by deportation to the country of origin and deterrence are not permitted to enter indonesian territory within the time limit specified by law. as in the case in this study that the suspect kuo tsung teng who filed a pretrial and continued to be proven to have committed an immigration crime, it was very appropriate that the central jakarta immigration class i office had conducted it to detain and deport the person; 2) administrative legal actions, investigative violations are not carried out, but are directly subject to immigration administrative measures, which are called immigration actions in the form of quarantine, deportation and deterrence. the obstacles faced by ppns of immigrations on conducting immigration crimes investigations in conducting investigations into violations of law no. 6 of 2011, which was carried out by the immigration ppns did not always run smoothly and sometimes encountered various obstacles. these obstacles make it difficult for investigators to disclose a case or make a criminal case clear. these obstacles can come from within (internal) or from outside (external). 190 m. alvi syahrin jils 3 (2) november 2018, 175-194 http://journal.unnes.ac.id/sju/index.php/jils 1. internal barriers, namely obstacles faced by investigators within the directorate general of immigration itself, which consist of: a. so far the immigration ppns is still a work that is attached to existing fields or activities, so that the investigative duties that are the responsibility of the ppns immigration ppns cannot be fully handled. in general, the immigration ppns ppns not only has investigative duties that require high concentration and is very specific, but also burdened with administrative tasks, even other tasks that are not at all related to law enforcement, so that investigative duties have not been properly touched. to overcome this problem, the priority scale will be carried out in carrying out the task of investigation by the immigration ppns. b. the limited immigration ppns personnel causes the handling of violations of the immigration act to often run less quickly. to overcome this, the ppns immigration is always given the motivation to work optimally with all the limitations that exist, both concerning the number of personnel or the budget. c. another thing related to the ppns immigration ppns condition is that the quality of resources is still inadequate. until now there has been no standard on ppns immigration education, both concerning the curriculum, the period of education and the implementation of education. therefore there needs to be a comprehensive ppns immigration education standard in order to improve the quality, capability and integrity of ppns. 2. external barriers are obstacles faced by investigators from outside the immigration agency. a. there is still a lack of public awareness to participate in reporting the presence of suspicious strangers around their neighborhood. to overcome this obstacle, socialization of immigration issues was carried out by cooperating with relevant agencies; b. there is still miscommunication or differences in perception between the police and the prosecutor's office in assessing the completeness of a case file. the action taken to overcome this obstacle is by always coordinating horizontally with fellow law enforcement agencies; c. lack of caution or accuracy from the competent agency in issuing population documentation to someone who is suspect. problems or difficulties that arise in handling overflow cases are difficulties related to the problem where the case occurred. the immigration ppns in the investigation sub-department has handled cases that have occurred at the jakarta, kalimantan, south sulawesi, cirebon and so on. in handling these cases, the immigration ppns on the investigation subdepartment experienced difficulties and collected evidence and witnesses and coordinated, especially if it is not supported by direct operational funds. the results can be seen from the process of completing an investigation that can run for months. 191 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils conclusion the process of investigating the perpetrators of violations of law no. 6 of 2011 by the immigration ppns conducted by kuo tsung teng who has committed a criminal offense as well as trade in fake immigration/passport travel documents by providing invalid data or incorrect information to obtain the travel documents of the republic of indonesia for itself, the process his investigation was problematic because the suspect was a foreign national who still had a taiwanese passport, while no witnesses knew of the arrest and detention of a suspect at the central jakarta immigration office i. the obstacles faced by the immigration ppns in carrying out law enforcement duties against violations of the immigration act and how to solve them start from the immigration ppns problem which not only has investigative duties that require high concentration and are very specific, but also burdened with administrative tasks, even other tasks that are not at all related to law enforcement, so that investigative duties have not been properly touched; there are differences in perceptions between the police and the prosecutor's office in assessing the completeness of a case file; lack of accuracy from the competent agency in issuing population documentation to someone who is suspect; another thing that is related to the immigration ppns condition is that the quality of resources is still inadequate; to the lack of community participation in reporting the presence of foreigners in the surrounding environment. therefore, the quality of immigration ppns human resources must always be improved by providing regular training; and law enforcement officials, especially the police and prosecutors must always carry out functional coordination that is horizontal, so that law enforcement against violations of law no. 6 of 2011 can be carried out optimally, empowered and effective. 192 m. alvi syahrin jils 3 (2) november 2018, 175-194 http://journal.unnes.ac.id/sju/index.php/jils reference adelman, robert, lesley williams reid, gail markle, saskia weiss & charles jaret. “urban crime rates and the changing face of immigration: evidence across four decades”. journal of ethnicity in criminal 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https://www.researchgate.net/profile/mathis_wagner/publication/304998920_how_and_why_does_immigration_affect_crime/links/577e6fd508aeaa6988b0c80b/how-and-why-does-immigration-affect-crime.pdf https://www.researchgate.net/profile/mathis_wagner/publication/304998920_how_and_why_does_immigration_affect_crime/links/577e6fd508aeaa6988b0c80b/how-and-why-does-immigration-affect-crime.pdf https://www.researchgate.net/profile/mathis_wagner/publication/304998920_how_and_why_does_immigration_affect_crime/links/577e6fd508aeaa6988b0c80b/how-and-why-does-immigration-affect-crime.pdf https://www.researchgate.net/profile/mathis_wagner/publication/304998920_how_and_why_does_immigration_affect_crime/links/577e6fd508aeaa6988b0c80b/how-and-why-does-immigration-affect-crime.pdf 194 m. alvi syahrin jils 3 (2) november 2018, 175-194 http://journal.unnes.ac.id/sju/index.php/jils republic of indonesia. law number 6 of 2011 concerning immigration. jakarta. 2011 republic of indonesia. managing director of the director general of immigration. number f-337.il.02.01 of 1995 concerning procedures for investigating immigration crimes. jakarta. 1995. republic of indonesia. regulation of the minister of justice of the republic of indonesia number: m-05.pw.07.03 of 1984 concerning implementation guidelines for proposing appointment and dismissal of civil servant investigators. jakarta. 1984. republic of indonesia. implementation guidelines for the director general of immigration. number: f337.il.02.01 of 1995 concerning procedures for investigating immigration crimes. jakarta. 1995. 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 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 237 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. 237-252 issn (print) 2548-1584 issn (online) 2548-1592 fight narcotics with community strengthening: crime control management by community policing restiana pasaribu restiana pasaribu central java police department, kepolisian daerah provinsi jawa tengah  restianapasaribu@gmail.com table of contents introduction ………………………………………………….….. 238 structural theory of functionalism on empowering community for polmas …………………….. 240 dimension of crime control in criminal law enforcement ……………………………………………………… 243 crime prevention by using criminal law ………….. 245 polmas empowerment on responding narcotics crime: a study of human resource professionalisme on member of polmas on polrestabes semarang ………………………………….……. 246 the function of bhabinkamtibmas in polmas empowerment …………………………………………………….. 249 conclusion ………………………………………………………… 250 reference ………….……………………………………………….. 251 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:restianapasaribu@gmail.com 238 restiana pasaribu jils 3 (2) november 2018, 237-252 http://journal.unnes.ac.id/sju/index.php/jils article info abstract submitted on february 2018 approved on june 2018 published on november 2018 drugs are the main enemy of nations in the world. indonesia, it seems also has become a paradise for the generation of drugs. various problems that occur in the community that can be resolved kinship will be resolved in rt polmas assisted by community figures in the surrounding community. thus, the empowerment of polmas by polrestabes semarang city in the prevention of drug crime is crucial to be the main program polrestabes semarang city. the research location is in polrestabes semarang. this research emphasized that policing empowerment in criminal drugs control is expected to provide active support to the polmas to report it if there is any indication that the drug is involved in its territory and dare to disclose its circulation, arrest the dealer, the perpetrator and the producer. cooperation and coordination and involvement of the above mentioned community participation must be optimally empowered, in order to support the success of the prevention of criminal acts of narcotics. keywords: enforcement, drug, empowerment, polmas, community policing how to cite (chicago manual style) pasaribu, restiana. 2018. “fight narcotics with community strengthening: crime control management by community policing”, journal of indonesian legal studies (jils), 3 (2): 237-252. introduction as a result of globalization, abuse and illicit trafficking of drugs in the city of semarang up to now has been very alarming and very endanger the lives of people, especially the younger generation, whose estrangement threatens the life and future of the nation and state of indonesia. abuse of illicit drug trafficking in semarang city is carried out with a high modus operandi, advanced technology, supported by an extensive organizational network and has expanded to all lines, all professions regardless of age and gender, social status, citizenship, religion, in all places ranging from public places such as in villages, in markets, installs, in stores, in hotels, in entertainment venues, in offices, on campuses, in schools, even in prisons and so on. in fact, the facts show that the prisons of penitentiary have functioned as an institution where they promote the distribution and abuse of drugs is only 239 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils more concerned about the existence of residents who have been sentenced to death but can freely control the drug business from prison (krisiandi 2017). it can be seen the high handling of cases of abuse and illicit drug trafficking in polrestabes semarang has been increasing for the last 5 (five) years since 2013 until 2017. data handling cases of abuse and illicit drug trafficking in polrestabes semarang can be seen in table 1 table 1 data of drug cases (2013-2017) in semarang year 2013 2014 2015 2016 2017 number of drug cases 57 80 117 175 198 source: polrestabes semarang 2018 table 1 above shows that the crime of abuse and illicit drug trafficking from year to year has increased significantly. this condition proves that the dangers of drug abuse and illicit trafficking have been very crucial and this requires a countermeasure involving all elements of the nation. increased control and supervision as an effort to reduce the circulation of drugs, is necessary because the circulation of drugs in general is not done by individuals on a stand-alone basis, but done jointly even done by the syndicate that is organized in a steady, neat and very secret (partidihardjo 2006: 15). implementation of supervisory duty on illicit drug trafficking is needed joint effort between law enforcement apparatus and all society elememt. the large amount of drug abuse needs to get more attention, especially in the case of drug abuse prevention. the number of drug abuse must be minimized so that the problem of drug abuse is not widespread. efforts to overcome the abuse of drug trafficking is a shared responsibility between family, community and government (agustino 2008: 7). seeing the abuse and illicit trafficking of drugs that are increasingly widespread and endangering the nation and state, the government has made law no. 35 of 2009 on narcotics as a substitute of law no.22 of 1997. because it is not in accordance with the development of the situation and conditions that exist. in order to prevent, eradication of abuse and illicit trafficking drugs are needed the role of law enforcement, government and all elements of society. the public has the widest opportunity to participate in the prevention and eradication of the illicit abuse and trafficking of narcotics and narcotics precursor (article 104 of law no. 35 of 2009). communities have equal rights and responsibilities in the effort to prevent and combat the misuse and illicit trafficking of narcotics and narcotics precursor as described in article 105 of law number 35 year 2009. article 105 regulates the participation of the community. the police of the republic of indonesia or the police as stated in law number 2 of 2002 regarding the state police of the republic of indonesia which states 240 restiana pasaribu jils 3 (2) november 2018, 237-252 http://journal.unnes.ac.id/sju/index.php/jils that the police of the republic of indonesia aims to realize the internal security which includes maintaining the security and public order, orderliness and law enforcement, the protection, community service, and the establishment of the peace of society by upholding human rights. law number 32 year 2004 regarding regional government, states that all development activities in the region should prioritize the interests of state defense. this means that development in the region should be implemented with reference to the national stability policy of the nation's prevailing policies. police regulation no. 3 of 2015 on community policing or police, police in the implementation of polmas through various means of internal conditions (cooperation and coordination of all polri working units) and external (community/community elements). crime drug enforcement in semarang city, polrestabes semarang, as implicated by national police regulation no. 3 of 2015 has empowered polmas through the implementation of polmas implementation which includes polri partnership and community in various activities ranging from coaching pamswakarsa siskamling or ronda kampung, ronda area/settlement, guidance counseling, supeltas, pks in schools, scouting saka bhayangkara, fkpm development (police and community partnership forum), guidance and counseling of kamtibmas to the community, religious leaders, community leaders, indigenous people, youth leaders, community communities, dialogue patrols to the community as well as through community service in all police functions as well as in the form of cooperation in the form of mou with various government and private agencies. polmas empowerment in accordance with its structure and function in semarang city, if implemented optimally will be able to overcome all disorders of kamtibmas including the criminal acts of drugs. polrestabes semarang in implementing the police chief policy to empower the polmas in realizing the conducive kamtibmas situation, which is intended to be a solution in accelerating the transformation of information to polri members at the outpost so that the constraint of delay in handling a problem in society can be minimized, not yet running optimally. similarly with the prevention of drug crime polrestabes semarang, should be addressed through the empowerment of polmas but until the implementation of this research the prevention of crime drugs on polrestabes semarang not yet optimal. structural theory of functionalism on empowering community for polmas structural functional theory whose originator is talcott parson. the basic assumption of structural functionalism theory, one of the ideals or perspectives in sociology which regard society as a system consisting of parts that are interconnected with one another and one part cannot 241 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils function without any connection with the other. then the changes that occur in one part will cause an imbalance and in turn will create changes in other parts. the development of functionalism is based on a model of development of organizational systems that can be in biology, the basic assumption of this theory is that all elements must function or functional so that people can perform its functions properly (parsons, 2015; parsons and shils 2001) the theory of structural functionalism is a theoretical building of the greatest influence in the social sciences of the present century. functional structural thinking is strongly influenced by biological thinking that considers society as a biological organism that consists of interdependent organs, the dependence is the result or consequence for the organism to survive. similar to other approaches this functional structural approach also aims to achieve social order (holmwood 2004; craib 2015; shafritz, ott, and jan 2015). understanding gerhard explains that talcott parson caused controversy over his approach to functionalism. parson has maintained functionalism for more than two and a half centuries since he published the structure of social action in 1937. his work, parson builds his sociological theory through analytical realism, meaning that sociological theory must use certain concepts sufficient to cover the world outside. (gerhard 2005: 62). talcott parson’s functionalist theory is not responsible for concrete phenomena, but to the elements within which are analytically separable from other elements. therefore, theory must involve the development of concepts summarized from empirical reality, of course, with all the diversity and confusion that accompany it. in this way, the concept will isolate the inherent phenomenon of complex relationships that build social reality. the uniqueness of parson's analytic realism lies in the emphasis on how this abstract concept is used in sociological analysis. so that in can is a concept organization in the form of an analytical system that covers the world’s problems without being distracted by the empirical details. (holmwood 2004: 92). richard grathoff mentions that society is integrated on the basis of agreement of its members on certain social values that have the ability to overcome differences so that the society is seen as a system that is functionally integrated in a balance. thus society is a collection of social systems of one another interconnected and interdependent (grathoff 2000: 67-87). george ritzer and douglas j. goodman mentioned that there are four absolute requirements that must exist in order to include society to function. the four requirements are called agil, namely adaption, goal, attainment, integration, and latency (agil). for the sake of its survival, the community must perform the functions of agil, namely: 242 restiana pasaribu jils 3 (2) november 2018, 237-252 http://journal.unnes.ac.id/sju/index.php/jils a. adaptation (adaptation) is a system must cope with the external situation is critical. the system must adapt to the environment and adapt it to its needs. b. the goal attainment, ie a system must define and achieve its ultimate goal. c. integration (integration), which is a system must regulate the interrelationship of parts that become components. the system must also manage interrelationships among the other three important functions. d. maintenance of patterns (latency), ie equip, maintain and creating and sustaining motivation (ritzer and goodman 2010: 118). parsons finds the answer to the problem of structural functionalism with the assumption as george ritzer puts it: a. the system has a regularity property and interdependent parts. b. the system tends to move in the direction of maintaining personal order or balance. c. the system may be static or move in a regular process of change. d. the nature of parts of a system affect the shape of other parts. e. the system maintains boundaries with its environment. f. allocation and integration are two fundamental processes necessary to maintain the balance of the system g. the system tends to lead to the maintenance of self-balance which includes maintaining the boundaries and maintaining the relationship between the parts with the whole system, controlling the different environments and controlling the tendency to change the system from within (ritzer 2010: 123). individual human action is also determined by its subjective orientation, that is, in the form of motivational orientation and value orientation which in realization can be various because of the elements as mentioned above. structural functionalism theory is something urgent and very useful in a study of social problem analysis. parsons states that he treats the system structure as a problem and also as a tool of change, however, he believes that this change occurs in a relatively smooth manner (cuff 1984). individuals in interactions with changing situations can adapt through the process of role bargaining. once their role is established, they create norms that guide further action and thus become customs that create the stability of social interaction. where the adaptation process cannot be adjusted, due to sharp shocks or direct radical changes, structural dissolution will occur and new structures are formed. this model of social change has been described as moving equilibrium, and emphasizes the wishes of the general public. 243 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils dimension of crime control in criminal law enforcement the classification of crime is based on the existence of crime classes. the crime classes are distinguished according to the process of causing the crime, the manner of committing the crime, the techniques and its organization and the incidence of groups having certain values in the class. classification, namely: a. professional crime that is a crime committed as a permanent livelihood and has certain expertise for the profession. for example: signature forgery, money counterfeiting, and pickpocketing. b. organized crime that is an organized crime. for example: illicit drug trafficking, extortion, wild gambling, and prostitution. c. occupational crime that is is a crime because of the opportunity. for example: burglary in homes, theft of clotheslines, ill-treatment, and others (arief 2004: 12). crime is an effort to overcome the crime is a reaction given to the perpetrators of crime, in the form of penal or non-penal, which can be integrated with each other. if a criminal facility is called to combat crime, then a criminal law will be enforced, namely electing to achieve the results of criminal legislation in accordance with circumstances and situations at a time and for the future (soekanto 2004: 5). according to ali masyhar states that crime is an anti-social phenomenon that must be eradicated, for the smooth life of society. evil exists and will always exist in society, taking place in every space, place, time and nation, and it is a phenomenon of human life. throughout the ages, evil is the oldest community problem. therefore, all that can be done is to prevent and reduce crime in the community. because evil always existed and evolved to accompany the community along with the progress of society's culture. the former crime known only as the warungan model, has now turned into modern crimes. even now with the development of cyberspace arises also cybercrimes that have not been reached by positive law today (masyhar 2008: 67). it is further argued that the main cause of crime in many countries is due to social inequality, racial discrimination and national discrimination, low standard of living, unemployment and illiteracy among the large population (masyhar 2008: 68). barda nawawi arief stated that the factors that actually want to be eliminated before combating the crime with penal law. this is due to the ultimum remedium function of the criminal law itself. only after other efforts (non-penal) cannot cope, then the criminal law will be used. if criminal justice policy is only charged by criminal law, then the cause will not be touched. moreover, actually the criminal law has limitations (masyhar 2008: 68-69), as follow. 244 restiana pasaribu jils 3 (2) november 2018, 237-252 http://journal.unnes.ac.id/sju/index.php/jils a. the use of criminal law in tackling crime is only a kurieren am symptom therefore criminal law is only a symptomatic treatment and not a causative treatment. b. criminal sanctions are remedium containing contradictory / paradoxical properties and contain negative elements and side effects. c. the punishment system is fragmentary and individual / personal, not structural / functional. d. limitations of the types of criminal sanctions and the criminal and imperative formulation of criminal sanctions. e. the operation / functioning of the criminal law requires a variety of support facilities and high cost demands. the use of criminal law is a remedy for a symptom rather than a solution by eliminating its causes in other words criminal penal sanction is not a causative treatment but merely symptomatic treatment. crime countermeasures (criminal politics) can use two means: a. penal policy with penal facility the penalty means crime prevention by using criminal law in which there are two central issues, namely what actions should be criminalized and what sanctions should be used or imposed on offenders. b. criminal policy by means of non penal the policy of crime prevention by non-penal means only involves the use of social means to improve certain social conditions, but indirectly affecting the prevention of crime (arief 2004: 19). criminal law enforcement is an attempt to translate and manifest the wishes of criminal law into reality, namely van hammel's criminal law is the whole basis and rules adopted by the state in its obligation to enforce the law, namely by prohibiting what is contrary to the law (on recht) and wearing misery to those who violate the prohibition (sudarto 1986: 60). according soerjono soekanto law enforcement does not merely mean the implementation of legislation. although in reality in indonesia the tendency is so, so the definition of law enforcement is so popular. there is even a tendency to interpret law enforcement as the executor of court decisions. this narrow understanding clearly contains weaknesses, because the implementation of legislation or judicial decisions can happen even disturb the peace in the social life of society (soekanto 2004: 5). talking about criminal law enforcement is not only how to make the law itself, but also about what law enforcement agencies do in anticipating and overcoming problems in law enforcement. therefore, in dealing with problems in criminal law enforcement that occur in society can be done penal (penal law) and non-penal (without using criminal law) (muladi 2010: 14). 245 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils crime prevention by using criminal law the law cannot be self-perpetuating, meaning that it is unable to manifest itself the promises and wills set forth in the (regulations) of the law. such promises and intentions, for example, are to give a person the right to provide protection to a person to impose a penalty on a person who meets certain conditions and so forth (rahardjo 2001: 14). law enforcement can be done by humans, where because law enforcement is done and aimed at human behavior it is necessary to know how human behavior is. human behavior is tied to a variety of things, a benchmark that exists beyond that person. the bond is so that it cannot ignore it in other words in its behavior in one's society will be oriented to the various things and benchmarks mentioned above. so it is difficult to accept that the behavior of people in society is free, but on the contrary that is disciplined by the restrictions mentioned above. so, humans do can be said because of the ties and responses of the environment (marpaung 2009: 32). the criminal law provides the understanding that man commits a criminal act because of himself and this concept is embraced by the flow of the theory of absolute punishment or the theory of retaliation, or a person commits a criminal act because of himself that is influenced by outside himself as well and this concept is embraced by the flow of theory of punishment relative or objective theories (muladi and arief 1998). so in the criminal act of mass, it can be seen that the criminal acts committed due to various facts that affect among the economic, political, legal, socio-cultural, and others. so we cannot deny that the mass committed criminal acts because of the influence that exists outside of itself is due to the environment. so in handling is not seen only to what is violated and why he violated but also how prevention efforts either in general or in particular (muladi 2002: 42). criminal remedies using criminal sanctions are the oldest way, as old as human civilization itself, to the present time criminal law is still used and counted as one of the means of criminal politics (muladi and arif 1998). khazawi explains as the reality that the mass criminal act also uses criminal law in an effort to overcome it because it is the problem that becomes its authority. however, as long as the criminal law is used so far, criminal law cannot overcome itself because criminal law has limited ability to overcome crime. sudarto states that since crime is caused by a very complex cause and is beyond the scope of the criminal law, it is natural that criminal law has limited ability to overcome it and according to which the use of criminal law is a symptom of a kurieren am symptom why. so the limitation of criminal law has been caused by the nature and function of the criminal law itself, because criminal law sanction is not a remedium to overcome disease causes, but simply to overcome the symptoms of disease. in other 246 restiana pasaribu jils 3 (2) november 2018, 237-252 http://journal.unnes.ac.id/sju/index.php/jils words, criminal penal sanction is not a causative treatment but merely symptomatic treatment and with symptomatic treatment of criminal sanction still contains many weaknesses, so it is always questioned its effectiveness (sudarto 1986: 33). so because it is necessary to combine crime effort in an integral both from the side of humanity and from the social side, the efforts to overcome the crime can be pursued by application of criminal law, prevention without criminal, and also influencing people's views on crime and punishment through mass media (arief: 1998). polmas empowerment on responding narcotics crime: a study of human resource professionalisme on member of polmas on polrestabes semarang the successful implementation of community policing programs is dependent on police and residents understanding the needs of their communities. differences between resident and police perceptions can affect the success of crime prevention strategies. much neighborhood research highlights residents’ perceptions of their neighborhoods; the perceptions of police officers are often not taken into account (stein et.al. 2017; schanzer 2016; boettke 2016), and the it emphasized that empowerment of polmas in the prevention of crime drug polrestabes semarang based on the aspect of human resource professionalism of members of polmas, the author underlined the situation of polrestabes semarang as important information material covering organizational structure, vision and mission, priority target in carrying out the vision and mission. globally, police forces are under pressure to identify and create effective ways to meet an increased demand for their services. at the same time, as quality of life has improved, the desire to seek a democratic and courteous police service has also increased. rising crime rates, combined with the fluidity of crime across borders, have made policing more difficult (pepinsky 1989; ren et al. 2006; choi and lee 2016). so, the community policing provide another perspective on solving the criminal problems, as well as in drug crimes. the condition of police, in some cases showed the negative perceptions from society. this condition as emphasized that despite indonesia’s police force being the fifth largest in the world, only a handful of academic publications have been dedicated to this key institution (e.g. meliala 2002; davies and buttle 2014, muradi 2014). as such, while it is widely acknowledged that indonesia’s police force is one of the most brutal, corrupt and ineffective globally, little research is available to shed insight into such police shortcomings (international crisis group 2012). 247 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils strengthen this fact, meutia (2016) emphasized that policing style can be reckoned as sophisticated as long as it avoids the idea of generalizing about people or applying general assumptions to any particular individual. in 2004, adrianus meliala raised concerns on the research question about “what is sensitive policing and how does it work in theory?”. this is followed by “to what extent is sensitive policing a feature of existing policing practice in indonesia national police and what are the problems and prospects associated with the introduction of such a model of policing in indonesia?”. this research took place during a period of reform and political tension in indonesia. while political activity and aspirations of democracy had been widespread during this time, the police force and its policing activity had also changed. the public also had looked for an identity changing in the indonesian police, which had been the object of both scrutiny and expectation. this previous research provide discussion analysis on a never-ending debate between the conventional policing style (and its roots) and community-oriented style with another form of policing that could be regarded as “middle way”; called sensitive policing. the results were complex that in one way, many sensitivity-related policies, either in the form of rights or procedures, had been announced. however, insensitivity, in a broad sense, could also be seen. despite this, the need to be responsive to meet public demand (as a prerequisite for sensitive policing) seemed growing consideration. in indonesia, community policing is being implemented since indonesian police chief legal letter no.pol.: skep/737/x/2005, october 13, 2005 about community policing implementation policy and strategy in police function. according to indonesian central agency of statistics, in 2011-2013, the number of criminal act or incidents of crime in indonesia fluctuated. in 2011, as many as 347.605 cases were recorded, then they declined to as many as 341.159 cases in 2012 but increased in 2013 recording 342.084 cases that means one crime occurred every one minutes 32 seconds in indonesia at this time. thus, effective implementation of community policing is urgently needed. indonesia surely was taking some parts on japanese community policing system as references for improving its implementation (meutia 2016). furthermore, it is important to know the quality and effectiveness of structure itself, which the organizational structure, the indonesian national police, the resort of the big city, abbreviated as polrestabes is the main implementing body of the regional police domiciled under kapolda. based on article 5 of regulation of the head of state police of the republic of indonesia number 23 year 2010 concerning organizational structure and administration at resort police level and police sector, polres has the duties of polri in maintaining security and public order, enforcing the law and providing protection, service to the community and carry out other polri duties within the district police area, in accordance with the provisions of the law. 248 restiana pasaribu jils 3 (2) november 2018, 237-252 http://journal.unnes.ac.id/sju/index.php/jils the priority objectives of polrestabes semarang are based on the achievement stage of polrestabes strategy plan of semarang 2015-2019 year 2018 with the achievement: “consolidation of personnel improvement of polrestabes semarang professional and proportional in every activity in society as well as achievement of productive political synergy and supported by sufficiency of personnel prosperity until in the furthest extent of territorialism by utilizing polri’s special material tools based on technology and science in order to develop and improve the service of prime society in order to create a steady and superior kamtibmas in order to support the national police headquarter to face the competitiveness of national defense strengthening, the priority target of polrestabes semarang of 2018, first, improving the professionalism of polrestabes semarang's human resources and strengthening the internal management of polri. second, propose improving the welfare of polri polestabes semarang personnel. third, to strengthen effective monitoring system to realize the service of police that is free from corruption, collusion and nepotism (kkn). then, fourth is to increase cooperation with law enforcement officers and government institutions/institutions in the area of semarang city. fifth, to improve the quality of public service that is dignified, easy, fast and based on modern technology. sixth is to implement a proactive prevention against potential crime and disorders kamtibmas in the city of semarang. seventh, enhancing law enforcement in a professional and fair manner against the criminal acts of narcotics, corruption and transnational community development, which includes community empowerment through community policing, guidance and development of forms of selfsecurity in the context of raising awareness and adherence of citizens to law and regulations the establishment of links between the police and the people, coordination and special police oversight. eight, is to implement sabhara functions, including regulatory activities, guarding, patrols (turjawali) and security of community and government activities, including petty criminal action (tipiring), security of rallies and mass control, and security of vital objects, tourism and very important person (vip). ninth, is to maintain the activities of traffic functions, including traffic turjawali activities, including violation action and traffic accident investigation and registration and identification of motor vehicles in the framework of law enforcement and guidance of security, safety, order and smoothness of traffic. tenth, is the implementation of aquatic police functions, including aquatic patrol activities, first handling of aquatic criminal acts, searching and rescuing accidents in aquatic areas, fostering aquatic communities in the context of crime prevention, and maintaining security in aquatic areas, and the last is the implementation of other functions, in accordance with the provisions of legislation. 249 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils the function of bhabinkamtibmas in polmas empowerment community policing developed in indonesia is one of the strategies in anticipating the handling of crime by using the preemptive and preventive approach, but in its implementation has not been able to run as expected. this is indicated by the high number of national incidents related to the success rate of community policing. one of his tasks is to promote the achievement of community policing. the task of bhabinkamtibmas as the bearer of polmas functions that has been implemented in semarang city such as a. carrying out community development, early detection, negotiation/mediation, identification, and documentation of community data at the place of assignment relating to kamtibmas condition; b. carrying out guidance and counseling on the community or community in his assignment on kamtibmas. one of them is counseling in schools ranging from paud, kindergarten, elementary, junior high, high school and public and private university/college related to all disorders kantibmas like drugs. c. carrying out communication and coordination with the community or community in its assignment on the maintenance of kamtibmas; and conducting consultations and discussions with the community or community on the assignment site on kamtibmas problem solving which includes: 1) village head / village head; 2) lmk / lmd; 3) community leaders; 4) religious leaders; 5) traditional leaders; 6) leaders of mass media; 7) intellectuals / academics; 8) leaders of ngos / cbos; 9) the leadership of youth organizations; and 10) leaders of women's organizations. but in the implementation is still not optimal. the not optimal implementation of bhabinkamtibmas tasks at this time so that is one of the causes of the slow pace of achievement of polmas as expected today. there are various weaknesses and obstacles bhabinkamtibmas that exist today so bhabinkamtibmas not able to carry out their duties maximally, whether it concerns the structural aspects, aspects of resources, budget aspects and cultural aspects. 250 restiana pasaribu jils 3 (2) november 2018, 237-252 http://journal.unnes.ac.id/sju/index.php/jils conclusion it can be concluded and highlighted that empowerment of polmas in the prevention of crime drug polrestabes semarang based on the aspect of professionalism of human resources of members of polmas. the philosophical aspect of pancasila, the first sila, in this case polmas empowerment is very concerned about the harmony of religious values that exist in society through partnership with the existing religious leaders of society. the second precept, polmas empowerment in this case is the embodiment of human values, in realizing security and peace together which have equality, rights and obligations, and uphold the dignity of human beings. the third precept, in this case the empowerment of polmas in partnership in starting to detect early potential problems up to solve the problems as fair as fair which is poured in a press agreement. the fourth precept, in this case the empowerment of polmas has the meaning that prioritizes deliberation in making decisions for the common good, respects every decision of deliberation, the decisions taken can be accounted morally to god almighty, uphold human dignity, justice puts together unity and unity for the common good. the fifth precept, in this case the empowerment of polmas gives a sense of justice for the whole community in every peace agreement in every solution of the problems that occur in society. the sociological aspect that the cultural roots of indonesian society are oriented towards family values and promotes the principle of consensus mufakat according to local wisdom. polmas empowerment through partnership with all elements and community communities in problem solving always put forward the principle of consensus deliberation. judicial aspect that the empowerment of polmas in accordance with the legislation in the country of indonesia as stipulated in the constitution of 1945, law no.8 is still not optimal polmas empowerment in the prevention of crime drug polrestabes semarang aspects of human resources (hr) members of polmas. the influence of strategic environmental factors both globally, regionally and nationally as well as the opportunities and obstacles that are significant for the cooperation of polmas stakeholders in overcoming the criminal acts of drugs. the ideal structure and function for polrestabes polrestabes semarang to maximize the prevention of drug crime in semarang city is synergize the organizational structure of polrestabes semarang at urban police level in charge of bhabinkamtibmas as polmas officer with the structure of sub-district organization up to the level of kelurahan responsible to the level rt as the lowest community where the rt member of polmas rt becomes the polri network in detecting early every potential of kamtibmas disruption, so that polmas empowerment in overcoming drug crime can improve discipline and also aware of law as well as community participation. 251 journal of indonesian legal studies vol 3 issue 02, 2018 http://journal.unnes.ac.id/sju/index.php/jils reference arief, barda nawawi dan muladi. kebijakan hukum pidana. bandung: pt citra aditya bakti, 2004. craib, ian. modern social theory. london: routledge, 2015. david schanzer, charles kurzman, jessica toliver, elizabeth miller. “the challenge and promise of using community policing strategies to prevent violent extremism: a call for community partnerships with law enforcement to enhance public safety”, research report, january, 2016, triangle center on terrorism and homeland security, sanford school of public policy, duke university. davies, s. g., meliala, a., & buttle, j. “gangnam style versus eye of 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masyhar, ali. pergulatan kebijakan hukum pidana dalam ranah tatanan sosial. semarang: unnes press, 2008. marpaung, leden. proses penanganan perkara pidana (penyelidikan dan penyidikan). jakarta: pt. sinar grafika, 2009. muladi and barda nawawi arief. teori-teori dan kebijakan pidana. jakarta: rajawali press, 1998. muladi. kapita selekta sistem peradilan pidana. semarang: undip, 1995. meliala, a., “local colours for indonesian national police”. policing and society, 2002, 12 (2):153–161. http://www.crisisgroup.org/en/regions/asia/south-east-asia/indonesia/218-indonesia-thedeadly-cost-of-poor-policing.aspx http://www.crisisgroup.org/en/regions/asia/south-east-asia/indonesia/218-indonesia-thedeadly-cost-of-poor-policing.aspx 252 restiana pasaribu jils 3 (2) november 2018, 237-252 http://journal.unnes.ac.id/sju/index.php/jils meutia, intan fitri. “the implementation of community policing in indonesia”, phd thesis, kanazawa university graduate school of human and socio-environmental studies, 2016. muradi. politics and governance in indonesia: the police in the era of reformasi. london: routledge, 2014. national police regulation no. 3 of 2015 concerning community policing (peraturan kapolri nomor 3 tahun 2015 tentang pemolisian masyarakat). parsons, talcott. the social system. london: routledge, 2015. parsons, talcott, and edward a. shils. toward a general theory of action: theoretical foundations for the social sciences. new jersey: transaction publishers, 2015. peter j. boettke, jayme s. lemke, liya palagashivili. “re-evaluating community policing in a polycentric system”. journal of institutional economics, june 2016, 12(2): 305-325, doi: 10.1017/s174413741500034x. pepinsky, h.e. “issues of citizen involvement in policing”. crime & delinquency, 1989, 35(3): 458–470. rachel e. stein, candace griffith, “resident and police perceptions of the neighborhood: implications for community policing”. criminal justice policy review, march 2017, 28(2): 139-154, doi: 10.1177/0887403415570630 ren, l., et al. “participation community crime prevention: who volunteers for police work?” policing: an international journal of police strategies and management, 2006, 29 (3): 464–481. ritzer, george. teori sosiologi. yogyakarta: pustaka pelajar, 2012. shafritz, jay m., j. seteven ott, and yong suk jan. classic of organization theory: eight edition. australia: cengage laerning, 2015. soekanto, soerjono. sosiologi suatu pengantar. jakarta: universitas indonesia, 2004. https://doi.org/10.1017/s174413741500034x https://doi.org/10.1177/0887403415570630 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 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. “evaluating e-government implementation by local government: digital divide in internet based public services in indonesia”, international journal of business and social science, 2011, 2 (3):156-161. google scholar crossref irianto, sulistyowati & shidarta. metode penelitian hukum konstelasi dan refleksi, jakarta: yayasan pustaka obor indonesia, 2011. google scholar crossref lloyd, ian j. information technology law. new york: oxford university press, 2011. google scholar crossref miyaki, patrick t. “computer software defects: should computer software manufacturers be held strictly liable for computer defect?”, computer and high technology law journal , 1992, 8 (1): 121-144. google scholar crossref http://www.seas.ucla.edu/security/malware.html http://www.seas.ucla.edu/security/malware.html https://scholar.google.co.id/scholar?hl=en&as_sdt=0%2c5&q=introduction+to+information+technology+law+sixth+edition.+united+kingdom%3a+pearson+longman&btng= https://books.google.co.id/books?id=wnegymbenuyc&dq=david.+introduction+to+information+technology+law+sixth+edition&hl=id&sa=x&ved=0ahukewiurvaemtnhahucknakhevacxyq6aeikdaa https://scholar.google.co.id/scholar?hl=en&as_sdt=0%2c5&q=how+does+product+liability+risk+affect+innovation%3f+evidence+from+medical+implants.%e2%80%9d+cepr+discussion+paper+no.+dp13036%2c+2018&btng= https://ssrn.com/abstract=3210601 https://scholar.google.co.id/scholar?hl=en&as_sdt=0%2c5&q=product+liability+versus+reputation&btng= https://academic.oup.com/jleo/article-abstract/32/2/213/2579599?redirectedfrom=fulltext 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https://books.google.co.id/books?hl=en&lr=&id=bt1kdgaaqbaj&oi=fnd&pg=pp1&dq=information+technology+law+lylod&ots=cqulbhwine&sig=izsdn1q0yd2xszkbzoejlz7fpug&redir_esc=y#v=onepage&q=information%20technology%20law%20lylod&f=false https://scholar.google.co.id/scholar?hl=en&as_sdt=0%2c5&q=computer+software+defects%3a+should+computer+software+manufacturers+be+held+strictly+liable+for+computer+defect%3f&btng= 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 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 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 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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 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. 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(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 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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corruptor; non-penal policy; penal policy; revocation of political rights 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:mariasilvya@yahoo.com 278 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 ………………………………………………………………. 277 table of contents ………………………………...………….….. 278 introduction ………………………………………………………. 278 law enforcement & political corruption perpetrators ……………………………………………………….. 281 i. law enforcement against the perpetrators of political corruption ………………………………………. 281 ii. revocation of political rights of the perpetrators of criminal acts of corruption ... 287 conclusion ……………………………………………………..…… 293 references …………………………………………………………… 294 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: wangga, m. s. e., pujiyono, p., & arief, b. n. (2019). revocation of political rights of the perpetrators of criminal acts of corruption. jils (journal of indonesian legal studies), 4(2), 277-298. https://doi.org/10.15294/jils.v4i2.29689 introduction this paper is intended to study the fixed-time revocation of political rights of the perpetrators of criminal acts of corruption. the additional criminal sentence in the form of revocation of rights shall be applied to all perpetrators of criminal acts of corruption. in this context, lawyers or notaries committing criminal acts of corruption shall be imposed with revocation of their right to practice. similarly, professors committing criminal acts of corruption shall be imposed with revocation of their right to each or their academic rights. the same shall apply to public officials elected through political processes such as, among others, members of dpr, dprd, mayors, regents/vice regents as well as governors/vice http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 279 available online at http://journal.unnes.ac.id/sju/index.php/jils governors committing criminal acts of corruption which shall be subject to the additional criminal sentence in the form of fixed-time revocation of political rights. data from kpk shows that during the 2004-2017 period, there were 165 political officials committing unlawful acts and abusing their position by self-enrichment, enriching other persons or corporations and even bribery (faisal, barid and mulyanto 2018). the perpetrators occupied the positions of governor, mayor, regent/vice regent and members of dpr and dprd (faisal, barid and mulyanto 2018). meanwhile, data from icw mentions 245 officials trapped in corruption offense (paskarina 2018). criminal acts committed by public officials elected through political processes are known as political corruption. political corruption is committed by the perpetrators with politician background although law no. 31 year 1999 concerning eradication of criminal acts of corruption does not recognize political corruption offense. the law only refers to the criminal acts of corruption provided for in article 2, articles 3 through article 16 as well as other criminal acts related to the criminal act of corruption provided for in articles 21 through article 24. the increasing number of unlawful acts and abuse of position by officials resulting from political processes has encouraged many parties to study political corruption. the study conducted by icw (2017) since 20142017 encouraged the judicial level to maximize the criminal sanctions of imprisonment and fine as well as maximum additional sanction against the perpetrators of political corruption (milono 2014). findings of icw (2017), connected to the study by milono (2014), indicate that sentence imposition by the judges has not been maximum due to lack of formulated guidelines on sentence imposition against state administrators committing criminal acts of corruption (milono 2014). the study by faisal, barid and mulyanto (2018) from kpk shows the increasing political corruption by officials based on the cost in relatively expensive political activities. for j. danang widoyoko (2018), the increasing number of public officials committing unlawful acts and abuse of position by extracting public resources to their companies begins not only during the tender process but since the planning and budget formulation stage. such acts involve politicians, the bureaucracy and the government (widyoko 2018). widyoko (2018) continues with the fundamental issue of patronage in the political economy. although various laws on goods and services procurement as well as electronic auction mechanism have been formulated, these have not been enough. in this context, widyoko (2018) suggests that kpk should cooperate with kpu and bawaslu to put in efforts in preventing corruption by regulating political funds. http://journal.unnes.ac.id/sju/index.php/jils 280 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils agus faisal et.al (2018) and widoyoko (2018) find that in the policies on the formulation of the political party law, the financial sources of political parties have been regulated. the formulation of norms regulating financing sources for the activities of political parties provides, among other things, the maximum members' contribution (rp 1 billion), personal sources (a maximum of rp 7.5 billion) and state aid from the state budget (apbn) or the regional budget (apbd). it is observed that political corruption committed by public officials continues to increase and harms all sectors including education, health, religion, food et cetera (muttaqin & susanto, 2018). for barda nawawi (2015), sustainable efforts (sustainable reform/sustainable development) are necessary from generation to generation in line with the development of the community. furthermore, barda (nawawi arief 2007) confirms the need for integral criminal policies, not only using a repressive approach but also causative and preventive approaches as well as the approach of policies on social, political, cultural and moral values allowing for covering the loopholes or limiting the room for political corruption to occur (nawawi arief 2007). one of the opportunities to limit the room for political corruption to occur is the policy on norm formulation of article 182 sub-article (g) and article 240 sub-article (g) of law number 7 year 2017 concerning general elections. the formulation of both norms which constitutes a requirement which must be met by the general election participants to elect dpd members and for nomination of members of dpr, dpd, dprd of province and dprd of regency/municipality should read as follows: “has never been imposed with criminal sanction of imprisonment based on a final and conclusive court decision for committing a criminal act subject to criminal sanction of imprisonment of 5 (five) years or more except if the person concerned openly and honestly declares that he/she is an ex-convict”. the authentic understanding of the afore mentioned norm formulation is that general election participants, for dpr, dpd as well as dprd of province and dprd of regency/municipality who have once been criminalized, need to honestly and openly make a public declaration. such declaration shall be made at every stage of general election implementation, starting from campaign stage up to the voting stage. since the elucidation of the law only refers to both articles as “selfexplanatory” then kpu as the national, permanent and independent general election organizing institution shall implement both norm formulation of article 182 sub-article (g) and article 240 sub-article (g) of law number 7 of 2017 concerning general elections. the implementation of both norm formulations leads to the consequence to be known to the public at large, considering that 81 ex-convict candidates were nominated http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 281 available online at http://journal.unnes.ac.id/sju/index.php/jils by 14 political parties as potential candidates for dprd of province and dprd of regency/municipality. implementation of both articles by kpu is part of the efforts to develop smart and integrity-based politics. this scientific paper is intended to study law enforcement against the perpetrators of criminal acts of corruption by revocation of political rights in connection with the norms of article 182 sub-article (g) and article 240 sub-article (g) of law number 7 year 2017 concerning general elections now and in the future. law enforcement & political corruption perpetrators i. law enforcement against the perpetrators of political corruption the terminology of political corruption is not recognized in the penal law formulation policy, either kuhp as the dutch colonial legacy/wvs or law number 31 of 1999 jo law number 20 year 2001 concerning eradication of criminal acts of corruption. the norm formulation of the laws only regulates which acts meet the formulation of corruption offense and the formulation of criminal sanctions. in the history of human civilization, corruption crime was not recognized; only property and right to life-related crimes such as theft and murder were recognized (dhakidae 2018). corruption was an invented crime in the development of increasingly complex community life (dhakidae 2018). in the formulation of criminal laws, no definition was found regarding corruption or political corruption. artidjo alkostar (2015) asserts that political corruption is a species of general corruption but it is a top hat crime. the issue of political corruption is not only indonesia's problem, but it is also a global issue. transparency international announced as an international movement the fight against corruption through national, regional and global coalitions by embracing the state, civil society and the private sector (bratsis peter 2003). political corruption is the conduct of misusing position or power by an official/ruler who has gained power through a political process. position is abused to gain material or immaterial benefits such as prestige or power. political corruption means the abuse of political power by the government leaders to extract and accumulate for private enrichment, and to use politically corrupt means to maintain their hold on power. however, http://journal.unnes.ac.id/sju/index.php/jils 282 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils abuse of political power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. political corruption takes place at the highest levels of the political system, and hence it can be differentiated from administrative or bureaucratic corruption and it can also be distinguished from business and private sector corruption. political corruption may take two forms (peter bratsis 2003), the first including accumulation and extraction in which government officials use and abuse their power to extract from the private sector, from government revenues and from the economy in the broad sense. some examples of the aforementioned form of corruption are extraction, embezzlement, rentseeking, looting and even kleptocracy. the second political corruption is where the resources gained (from public funds) are used for preserving and expanding power. this usually takes the form of favoritism and patronage politics. it includes financial and material distribution, favouritist benefit and loot and it has political motive. arnold heidenheimer and michael johnston whose thoughts are quoted by herry priyono (2018) assert that corruption is morally defined as destruction of integrity in the implementation of public obligations by way of bribery or gifts, or even fraudulent practices in a country. heidenheimer (amundsen 1997) asserts that political corruption is any transaction between private and public sector actors through which collective goods are illegitimately converted into private-regarding payoffs. political corruption may take place during the making of political decisions by using political power as the means in order to sustain power, status and wealth. political corruption is defined as the manipulation of political institutions and the rules of procedures which therefore influences government institutions and the political system and leads to institutional decay (amundsen 1997). another thought asserts that political corruption takes place when laws and regulations are more or less systematically abused by the rulers, side-stepped, ignored or even tailored to fit their interests. enforcement against and mitigation of political corruption are part of criminal policy. for sudarto (2006), criminal policy (criminal politics) constitutes a rational effort of the ruler or the community to mitigate crime (sudarto 2006). the efforts include penal policy (penal law) as well as nonpenal policy (which emphasizes prevention) (nawawi arief 2008). the crime to be mitigated is, of course, political corruption. criminal law policy of the law on the eradication of criminal acts of corruption does not specifically regulate the types of political corruption offenses but the norm formulation has spread and existed since the dutch era, through corruption offense regulated in kuhp/wvs (nawawi arief 2015). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 283 available online at http://journal.unnes.ac.id/sju/index.php/jils following indonesia's independence, corruption offense was stipulated through military rule regulation no.prt/pm/06/1957, army central war rule regulation no.prt/peperpu/013/1958, law number 24/prp/1960, law number 3/1971 as subsequently replaced with law number 31/1999 jo law number 20/2001 (nawawi arief 2013, 2015; hamzah 2006). the efforts to eradication political corruption by penal policy (penal laws) through the formulation of maximum criminal sanctions starts from death sentence, criminal sanction of life imprisonment, criminal sanction of 20-year imprisonment up to the minimum criminal sanction of imprisonment for 1 year. the same shall apply to the formulation of maximum up to minimum criminal sanction of fine. the maximum criminal sanction of fine is rp 1 (one) billion and the minimum fine is rp 50 (fifty) million rupiah. icw (2017) monitored corruption cases in 2014-2017 and found the trend of law enforcement imposing light criminal sanction of imprisonment against the perpetrators of criminal acts of corruption (wangga, kardono & wirawan 2019). table. 1 trend of decisions on criminal sanction of imprisonment in 2014-2017 year category number of perpetrators of criminal acts of corruption (defendants) 2014 acquittal 19 light (0-4 years) 195 medium (4-10 years) 43 severe (≥ 10 years) 4 2015 acquittal 38 light (0-4 years) 163 medium (4-10 years) 37 severe (≥ 10 years) 3 2016 acquittal 46 light (0-4 years) 275 medium (4-10 years) 37 severe (≥ 10 years) 3 2017 acquittal 22 light (0-4 years) 262 medium (4-10 years) 41 severe (≥ 10 years) 3 http://journal.unnes.ac.id/sju/index.php/jils 284 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils the increasingly high and massive corruption in all sectors is not in line with law enforcement at the judicial level. the table above describes the perpetrators of corruption in general who have been imposed with light criminal sanction of imprisonment (0-4 years) by the court judges. law enforcement against the perpetrators of criminal acts corruption shows a disparity between common offense such as theft (of personal belongings) and robbing public property (public funds) being imposed with light punishment in larger number. as seen in 2014, 195 perpetrators of criminal acts of corruption were imposed with light sentence, while in 2015 there were 163 persons. in 2016, the number increased to become 275 persons while in 2017, 262 persons were imposed with light sentence for criminal acts of corruption. the criminalization disparity was due to the fact that the judges had not had any criminalization guidelines which must be considered before passing the decision. the formulation of criminalization guidelines which must be considered by the judges was regulated only in the draft of indonesian penal code (r-kuhp) article 60 of which reads; a) fault of the perpetrator of criminal act; b) motive and purpose of committing a criminal act; c) inner attitude of the perpetrator of criminal act; d) commission of the criminal act has been or has not been planned; e) means of committing a criminal act; f) attitude and actions of the perpetrator after committing a criminal act; g) life history, social condition and economic condition of the perpetrator of criminal act; h) influence of a criminal act on the future of the perpetrator of criminal act; i) influence of a criminal act on the victim or the victim's family; and/or k) legal value and justice living in the community. in addition to criminalization guidelines, the judges also need to apply forms of additional criminal sanctions in article 18 of law number 31 year 1999 namely, among other things, dispossession of tangible or intangible movable goods or immovable goods used for or obtained from criminal acts of corruption, payment of damages, partial or total closure of a company for a maximum period of 1 year and revocation of all or a part of certain rights or elimination of all or a part of certain benefits. the example is revocation of political rights for a fixed time period, 5 (five) or 10 (ten) years, against perpetrators of criminal acts of corruption with political background or officials elected through political processes. this means that after the perpetrators have served criminal sanction of imprisonment, they have not been able to use their right to nominate for dpd or to become candidate members of dpr, dprd of province and dprd of regency/municipality. it is not after the lapse of 5 (five) years that the perpetrators of political corruption can exercise their right of nomination. this mandate of http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 285 available online at http://journal.unnes.ac.id/sju/index.php/jils the law does not apply to all perpetrators of criminal acts of political corruption. the writers can refer to an example of wa ode nurhayati, member of the budget agency of dpr from pan faction who was only sentenced with imprisonment of 6 (six) years and criminal sanction of fine in the amount of rp500,000,000.(five hundred million rupiah) through verdict number 30/pid. b/tpk/2012/pn.jkt pst and verdict number 60/pid/tpk/2012/pt.dki, appeal verdict number 884k/pid.susu/2013. the perpetrator was a state administrator, a member of dpr who should have imposed with additional punishment in the form of revocation of political rights and confiscation of property which the defendant could not prove as legitimately-earned property. the writers view that the perpetrator should be imposed with additional punishment considering that as member of dpr the perpetrator should have struggled for the regions' right to obtain fund allocations for the accelerated development of regional infrastructure (pppid), such as aceh besar regency, pidi jaya regency, bener meriah regency and minahasa regency. the efforts to struggle for people's interest for the aforementioned regions were accompanied with rewards/request at 5%-6%. the perpetrator received rewards during the period from october 8, 2010 up to september 30, 2011 through a number of transaction, totaling rp.50,595,979,593.77 (fifty billion five hundred and ninety-five million nine hundred and seventy-nine thousand five hundred and ninety-three rupiah and seventy-seven cents) placed in account no. 102-00-0551613-0. mandiri kcp jakarta dpr-ri. abdul fickar hadjar (2012) made annotations to the verdict against wa ode nurhayati and found the legal fact that the public prosecutor of kpk had received relatively good assistance from kpk investigators as well as ppatk through the technique of search of the defendant's assets. the search technique was applied by: search of asset opening/acquisition, living expenses and made-up means of acquisition. the results of asset search against the perpetrator (wa ode nurhayati) indicated the legal fact that the perpetrator did not have any family business at all in marauke. if the person concerned had any business, then the cash flow mechanism to and from the bank could be identified. the legal fact proved that the perpetrator placed, transferred, made payment repeatedly during 2010-2011 the time of which was concurrent with the position of the perpetrator as member of dpr/budget agency of dpr-ri rather than as business actor. in fact, there was not found any legal fact in the form of tax payment transaction as a business person (either before or after sitting as member of dpr). the legal fact clearly indicated that the wealth possessed by the perpetrator (wa ode nurhayati) had not been obtained from legitimate proceeds (business) so that it is proper to suspect it to be the proceeds of http://journal.unnes.ac.id/sju/index.php/jils 286 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils other criminal acts such as gratuity or even in-office extortion. it is unfortunate, however, that the legal fact was ignored as the judicial review judges, through decision number 214 pk/pid.sus/2014 rejected the judicial review of the defendant (wa ode nurhayati) and changed the decision by returning the perpetrator's money in the amount of rp 10,000,000,000,000,(ten billion). the judges considered that the returned money in the amount of 10,000,000,000,000.(ten billion) was not the proceeds of a crime but from the perpetrator's business run before sitting as member of dpr. the writers view that there was a mistake of the judges in understanding the technique for searching the defendant's assets where the defendant herself could not proved the money as the proceeds from business, without any tax payment transaction as included in the decision aquo. the writers observed that the return of money in the amount of rp 10,000,000,000,000.(ten billion) to the perpetrator wa ode nurhayati and non-revocation of her political rights for a fixed period for example 5 or 10 years became a loophole for the person concerned to nominate again for member of dpr. the authors underline and raise question whether the perpetrator has realized her mistake, whether the very short punishment has successfully fixed her behavior making her feel worthy of becoming a legislative member. the study by nimerodi gulio (2018) shows that there has been no right and appropriate model of development for corruptionrelated convicts with good educational and economic background. gulio (2018) adds that this political corruption does not require any skill development program. political corruption convicts only need regular implementation of the rules of procedure in the correctional institution. for example, they need to obey the visit schedules, medical treatment schedule to the hospital or doctor, and so on. for the writers, the activities of following the rules of procedure are the right and obligation of inmates in the correctional institutions so that they have no significant impact on the development of behavior of political corruption convicts. limited human resources and limited development programs or lack of development method suitable for the background of corruption perpetrators will not make any change to the behavior and purpose of life of the person concerned. observing various existing limitations, the writers find it necessary to change the form of development not only being criminal sanction of imprisonment but also social work sanction which needs to be formulated for the perpetrators of criminal acts of corruption. in addition to changing the formulation of the forms of criminal sanctions, it is also necessary to strengthen it with non-penal policy (prevention). one of the preventive efforts against the perpetrators of political corruption is through the norms http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 287 available online at http://journal.unnes.ac.id/sju/index.php/jils of article 182 sub-article (g) and article 240 sub-article (g) of law number 7 year 2017 concerning general elections. the implementation of both norms by the general election commission (kpu) constitutes a policy to cover the gap for ex-convicts of corruption to be nominated as members of dpr, dprd and dpd. for example, wa ode nurhayati, an ex-convict in the corruption of budget allocation for the regional infrastructure development acceleration project (pppid) filed a petition against kpu for stipulating the regulation prohibiting ex-convicts of corruption to become a legislative member candidate. the result was that the petition of wa ode nurhayati, an ex-convict of corruption, was rejected so that she could not be nominated by a political party to become a legislative member. for the writers, the rejection of the petition filed by the ex-convict as well as the ban against the political right of ex-convicts of corruption constitute law enforcement through non-penal policy which must be implemented in a sustainable manner as viewed by barda nawawi (2015). nawawi (2015) asserts that law enforcement against criminal acts of corruption, particularly political corruption, cannot be conducted in part (merely criminal law policy) but it must be conducted in a sustainable manner (sustainable reform/sustainable development) through non-penal policy in accordance with the changes in the community (nawawi arief 2015). law enforcement conducted integrally is not only repressive but also causative and preventive, based upon the policies on social, economic, political, cultural, and moral values covering the gap or limiting the room for political corruption to occur (nawawi arief 2007). ii. revocation of political rights of the perpetrators of criminal acts of corruption law enforcement against the perpetrators of political corruption through the revocation of political rights constitutes a model of responsive law (nonet & selznick 1978) as well as progressive law (rahardjo 2009). law enforcement will create order in the community so that community order can last in a fair, prosperous and even manner. in kpk report, in 2013-2017, 26 public officials had their political rights revoked. this relatively small number was not in line with the judges' spirit to eradicate rotten, evil and despicable behavior against the perpetrators. a case study already described by the writers above was that of wa ode nurhayati. the judges only imposed a criminal sanction of imprisonment of 6 (six) years and criminal sanction of fine of rp 500,000,000.(five hundred million rupiah). in fact, at the judicial review level, the person concerned obtained a http://journal.unnes.ac.id/sju/index.php/jils 288 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils decision by the judges in the form of return of money in the amount of rp 10,000,000,000,000.(ten billion) as well as non-revocation of political rights for a fixed period, for example 5 or 10 years. application of additional criminal sanction in the form of fixed time revocation of political rights is very urgent and vital to be implemented against all perpetrators of political corruption. the application of the sanction of revocation of political rights is intended for humans (political officials) to realize their faults and not to repeat them. efforts to correct the faults of corruptors through the application of the revocation of political rights are very urgent at this time. this is in line with the thought of jeremy bentham (bentham 2006; hiariej 2013) that criminal sanction must give benefits in the form of: a) improving self-correction among criminals; b) eliminating the capacity to commit crimes; and c) providing compensation to the harmed parties revocation of political rights will give the benefit of improved behavior of the perpetrators. after serving their imprisonment sentence, perpetrators will return to the community to socialize or interact with them. various reactions will be received by the persons concerned. assistance by the family, psychiatrists as well as religious opinion leaders will play a vital role in restoring behavior toward non-criminal one. such efforts are intended to eliminate the capacity of the persons concerned to repeat their behavior. improvement efforts must be repeated in order to form a positive behavioral pattern. for bentham (2006; hiariej 2013), criminal sanctions to be currently imposed to the perpetrators must also involve the victims (the community) and the perpetrators in order to pay attention to their life in the future. it is therefore very right for political corruptors to be imposed with the additional sanction in the form of revocation of political rights for a fixed period. quoting the thought of satjipto rahardjo (2009; l. tanya 2015; hidayat 2017) the judges as law enforcement officials may escape by finding new ways (rule breaking), namely, among other things: a) using spiritual intelligence to rise from legal downturn gives an important message for us to be bold to find new ways (rule breaking) and never let ourselves be confined in old ways, applying old and traditional laws which to a greater extent clearly hurt the sense of justice; b) the search for a deeper meaning should become the new standard in implementing the law and in living in a rule-of-law state, where each party involved in the law enforcement process is encouraged to always ask their conscience about the deeper meaning of law; c) the law should be implemented not according to the principles of logic only but also with feelings, care and compassion for the weak or the http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 289 available online at http://journal.unnes.ac.id/sju/index.php/jils community at large. the community deprived of their economic, social, cultural and political rights in indonesian context, revocation of political rights of the perpetrators of political corruption by the law enforcement officials constitutes a principle of virtue in the legal science, as known with the phrase fiat justita, ne pereat mundus. hegel, a german philosopher interpreted the principle of fiat iustita, ne pereat mundus (pandor 2012), which is, semantically, that law (ius) must be enforced so that the world will not perish. allegorically, the world is interpreted as community relations or livelihood in the community (pandor 2012). in relation to revocation of political rights of political officials, this principle is intended for creating order in the community so that the community order may continue in fair, prosperous and even manner. the order is to be filled by people who are clean, honest and who have integrity. therefore, law must be interpreted as justice (ius), which must serve the community, maintain social order in the community rather than preserving power/abuse. indonesia and the international world make efforts to keep and maintain community order regularly by self-adaptation through universal values recognized by civilized nations in the form of international conventions, model treaty, code of conduct, standard and guidelines and so on (muladi 2002). one of the efforts has been indonesia's ratification of the un anti-corruption convention through law number 7 year 2006 concerning the ratification of the un convention on corruption. the principles in this convention encourage member countries to increase the awareness of civil society of the consequences of corruption and for the community to be actively involved in the efforts of corruption prevention and eradication. for ian mcwalters (2006), the essence of corruption always changes; when one door is closed, there will be another hole for another way. for that purpose, it is very important to review the adequacy of the anti-corruption law with other laws (mcwalters 2006). observing the view of mcwalters (2006), in line with the views of sudarto (2006) and nawawi arief (2007), mitigation of the crime of political corruption is not only through penal policy but also non-penal policy. one of the forms of non-penal policy which can be pursued according to mcwalters (2006) is increasing the standard of ethics and monitoring as well as supervision of certain officials. another non-penal effort is to stipulate quality requirement guaranteeing fair and participatory level of representation in electing political officials with quality, honesty, professionalism and integrity. for that purpose, kpu as the general election organizer shall conduct socialization of general election implementation related to the duties and authority of kpu. one of http://journal.unnes.ac.id/sju/index.php/jils 290 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils 0 2 4 6 8 10 12 11 10 10 7 6 6 4 4 3 3 2 2 2 2 the authorities of kpu is to treat general election participants in a fair and equal manner. the principles of fairness and equality shall be applied by implementing the formulation of the norms of article 182 sub-article (g) and article 240 sub-article (g) of law number 7 year 2017 concerning general elections. the formulation of both norms constitutes a requirement which must be met by the general election participants to elect dpd members and for nomination of members of dpr, dpd, dprd of province and dprd of regency/municipality which reads as follows: “has never been imposed with criminal sanction of imprisonment based on a final and conclusive court decision for committing a criminal act subject to criminal sanction of imprisonment of 5 (five) years or more except if the person concerned openly and honestly declares that he/she is an exconvict”. the implementation of the duties and authority to produce quality representatives of the people in organizing (electoral law) and implementing general elections (electoral process). for that purpose, kpu has performed its obligation by issuing the announcement of 81 ex-convicts in corruption who would become potential candidates for dprd of province and dprd of regency/municipality from 14 political parties (kompas.com, 6 february 2019), namely, among others: fig. 1 graphic chart of political parties & legislative candidates for dprd, dpd who are convicts in corruption fig. 1 showed that the community must realize and know that only two political parties has not nominated legislative candidates being convicts in corruption, namely, nasdem party and psi. meanwhile, 14 http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 291 available online at http://journal.unnes.ac.id/sju/index.php/jils political parties still support or nominate legislative candidates for dprd being convicts in corruption. the political party at the top position was hanura with 11 persons. the second position is occupied by demokrat party and golkar party, with 10 persons, while the third position is occupied by berkarya party with 7 persons and the fourth position is occupied by pan and gerindra with 6 persons. perindo and pkpi are in the fifth position, with four persons. meanwhile, the sixth position is occupied by two parties having three legislative candidates being convicts in corruption, namely ppp and pbb. the seventh or the last position is occupied by four political parties with twolegislative candidates, namely pks, pkb, pdip and garuda party. the legislative candidates for dprd and dpd who are convicts in corruption in the table above come from various provinces and regencies/municipalities in indonesia. the announcement obligation of kpu ri must also be implemented by provincial kpu and regency/municipal kpu. the implementation of the obligation by kpu is, of course, not merely to implement the formulation of article 182 subarticle (g) and article 240 sub-article (g) of law number 7 year 2017 concerning general elections. it is, however, an effort to make the community realize its role in selecting legislative candidates who are clean, flawless and who have integrity. the community's awareness reflects the effort to prevent and eradicate criminal act of corruption as provided for in article 41 paragraphs (3) and (4) of law number 31 year 1999 concerning eradication of criminal acts of corruption. the awareness to form community order which is honest, prosperous and equal is not merely the right and responsibility of the community, but also political parties. the right and responsibility of the community constitutes part of the awareness and knowledge in using their voting right to elect political official with quality, morals and integrity. meanwhile, political party mechanism is intended for electing potential candidates who hare clean, honest and who have integrity as stated in the norm of article 29 paragraph (1) of law number 2 of 2011 concerning political parties which reads “political parties shall conduct recruitment of indonesian citizens to become : a). members of political parties , b). potential candidates for dpr and dprd, c). potential candidates of heads of region and vice heads of region, d). potential candidates for president and vice president. furthermore, paragraphs (1a), (2), (3) assert that recruitment and cadre formation shall be conducted in a democratic manner with considerations on minimum women's representation of 3% in accordance with the statute\/by-laws as well as the laws and regulations by the decision of the political party. every citizen has the opportunity to become a member of a political party as well as to become a legislative candidate for dpr, dprd and dpd. http://journal.unnes.ac.id/sju/index.php/jils 292 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils to become a member of a political party and a legislative candidate for dpr and dprd the recruitment and cadre formation shall be conducted in a democratic manner. the law does not provide the definition of "recruitment and cadre formation shall be conducted in a democratic manner”. the elucidation only refers to it as being “self-explanatory”. the term rekrutmen is derived from the base word “rekrut”, which means recruit (soldier) and new member. if we search the meaning in the standard indonesian dictionary (subsequently referred to as kbbi), “rekrutmen” means mobilization (pengerahan). in kbbi, pengerahan means the process, method, and act of mobilizing. the term kaderisasi (cadre formation) is derived from the word “kader” which means officer or non-commissioned officer in the army and a person expected to play an important role in government, a party and so on. the term kaderisasi in laws is derived from the word “kader” added with the suffix “isasi”. in kbbi, kaderisasi is cadre formation, which means that it is half forced due to the loss of some mainstay players. the term demokrasi (democracy) is derived from the greek word, “demos” which means people and “kratos” which means power/in power. based on the terminology, it means people in power. therefore, recruitment and cadre formation in a democratic manner to become member of political parties and legislative candidates for dpr and dprd can be interpreted in such a way that the people is in power over the process, method, act of mobilization to become members of political parties and legislative candidates for dpr and dprd. if it is based on people's power, citizens who will become members of political parties and legislative candidates for dpr and dprd shall be citizens who are clean, hones, who have morals and integrity. political parties which receive funds from the state budget (apbn) and regional budget (apbd) shall prioritize the implementation of political education activities such as, a) in-depth study of the four pillars of the nation and the state, namely pancasila, the 1945 constitution, bhineka tunggal ika and the unitary state of the republic of indonesia; b). understanding of the rights and obligations of indonesian citizens in developing political ethics and culture; as well as c). cadre formation of political party members in a gradual and sustainable manner. on the other hand, however, a regulation is made which can be read as allowing for exconvict (including those in corruption cases) candidates for dpr, dprd provided that they shall openly and honestly declare to the public that they are ex-convicts and that prospective members of dpd who used to be imposed with criminal sanction shall posses a certificate from the correctional institution. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 4(2) 2019 293 available online at http://journal.unnes.ac.id/sju/index.php/jils as a matter of fact, it has been clearly desired in the law that party members/cadres nominated and selected by the political parties shall have moral and integrity-based track records in order to be competent in making policies having positive impacts for the advancement and welfare of an advanced, just and prosperous nation. by realizing the norms of this law, it will be no longer necessary for political parties to nominate political party members/management who are ex-convicts in the nomination for dpr, dprd as well as for dpd. this is not merely the political right of convicts but also the right and responsibility of any political party on the basis of responsive law as conveyed by philip nonet & philippe selznick (1978) who positions law as the means and public aspiration. the demand of the community at large for the creation democratic and equal community order requires the leadership by those with hones and clean character and those who have integrity. they are not leaders with oppressive character who are greedy but leaders who are, as termed by artidjo alkostar (2017), leaders capable of distributing state wealth evenly, of maintaining state authority and providing infrastructure facilities for their people. according to the writers, efforts to maintain community order is a joint task of the community, political parties including law enforcement officials as well as law enforcement institutions. one of the efforts to make in the future is the support from the supreme court through a circular of the supreme court of the republic of indonesia or a regulation of the supreme court of the republic of indonesia which will require the judges examining, hearing and deciding upon political corruption cases to apply an additional criminal sanction in the form of fixed-time revocation of rights. the application of revocation of rights shall apply to all perpetrators of criminal acts of corruption, be it notaries, lawyers, professors as well as political officials and other professions. conclusion the paper concludes that a weakness in law enforcement through the criminal law policy in concreto by the judges who still impose light criminal sanctions of imprisonment against the perpetrators of criminal acts of corruption and who have not imposed maximum additional criminal sanction in the form of fixed-time revocation of rights, such as revocation of political rights of the perpetrators of political corruption. this weakness needs a follow-up in the future by the supreme court by issuing a circular of the supreme court of the republic of indonesia or a regulation of the supreme court of the republic of indonesia which will require the judges http://journal.unnes.ac.id/sju/index.php/jils 294 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils examining, hearing and deciding upon political corruption cases to apply an additional criminal sanction in the form of fixed-time revocation of political rights. moreover, in order to strengthen enforcement of criminal legal policies against the perpetrators of corruption, it is necessary to implement it in a sustainable and integral manner through non-penal policies (prevention). preventive efforts are to be made by developing the concept of smart and integrity-based politics through the standards of ethics and monitoring as well as supervision of public officials or officials elected through political processes. non-penal policy becomes the common right and responsibility of the community, political parties as well as general election organizers regarding public or political officials who are clean, honest and who have integrity. references amundsen, i. 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(2016). berkelahi melawan korupsi tunaikan janji wakafkan diri. malang: intrans publishing. http://journal.unnes.ac.id/sju/index.php/jils http://www.politik.lipi.go.id/kolom/kolom-2/politik-nasional/1225-problematika-pkpu-no-20-tahun-2018-mantan-koruptor-menjadi-caleg http://www.politik.lipi.go.id/kolom/kolom-2/politik-nasional/1225-problematika-pkpu-no-20-tahun-2018-mantan-koruptor-menjadi-caleg http://www.politik.lipi.go.id/kolom/kolom-2/politik-nasional/1225-problematika-pkpu-no-20-tahun-2018-mantan-koruptor-menjadi-caleg https://doi.org/10.24815/kanun.v21i1.12862 https://doi.org/10.32697/integritas.v4i2.200 298 jils (journal of indonesian legal studies) volume 4(2) 2019 available online at http://journal.unnes.ac.id/sju/index.php/jils quote corruption is a cancer: a cancer that eats away at a citizen's faith in democracy, diminishes the instinct for innovation and creativity; alreadytight national budgets, crowding out important national investments. it wastes the talent of entire generations. it scares away investments and jobs. joe biden former vice president of america http://journal.unnes.ac.id/sju/index.php/jils https://www.brainyquote.com/authors/joe-biden-quotes 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 http://journal.unnes.ac.id/sju/index.php/jils journal of indonesian legal studies vol 4 issue 01, 2019 ———. 2006. perkembangan dan konsolidasi lembaga negara pasca reformasi. jakarta: sekretariat jenderal dan kepaniteraan mahkamah konstitusi ri. chairunnisa, ninis. 2018. ―soal pkpu caleg koruptor, refly harun: kpu hilangkan hak warga.‖ tempo. 2 july 2018. https://nasional.tempo.co/read/1102947/soal-pkpu-caleg-koruptorrefly-harun-kpu-hilangkan-hak-warga. dza. 2018. ―dpr undang kpu bahas aturan larangan eks koruptor nyaleg.‖ nasional. 3 july 2018. https://www.cnnindonesia.com/nasional/20180703125320-32311053/dpr-undang-kpu-bahas-aturan-larangan-eks-koruptor-nyaleg. efendi, jonaedy, dan johny ibrahim. 2018. metode penelitian hukum normatif dan empiris. depok: prenadamedia group. gatra, sandro. 2018. ―akhirnya, kemenkumham mengundangkan pkpu pencalonan anggota legislatif.‖ kompas.com. 4 july 2018. https://nasional.kompas.com/read/2018/07/04/11244991/akhirnyakemenkumham-mengundangkan-pkpu-pencalonan-anggota-legislatif. huntington, samuel p. 1997. gelombang demokratisasi ketiga. jakarta: grafiti. ihsanudin, ihsanuddin. 2018. ―yasonna: pkpu larangan eks koruptor nyaleg batal demi hukum.‖ kompas.com. 26 juni 2018. https://nasional.kompas.com/read/2018/06/26/18081721/yasonnapkpu-larangan-eks-koruptor-nyaleg-batal-demi-hukum. indrati s., maria farida. 2016. ilmu perundang-undangan jenis, fungsi, dan materi muatan. yogyakarta: kanisius. ―kpu portal publikasi pemilihan umum 2019.‖ t.t. diakses 24 juli 2018. https://infopemilu.kpu.go.id/. lev, daniel s. 1970. hukum dan politik di indonesia. cambridge: cambridge university press. maharddhika. 2018. ―pkpu 20/2018 tentang pencalonan anggota legislatif pascapengundangan tanggal 3 juli 2018 – rumah pemilu.‖ 4 juli 2018. http://rumahpemilu.org/pkpu-no-20-tahun-2018pascapengundangan-tanggal-3-juli-2018/. mahfud m.d., moh. 2012. politik hukum di indonesia. jakarta: raja grafindo. nasution, bahder johan. 2014. negara hukum dan hak asasi manusia. bandung: mandar maju. nugraheny, dian erika. 2018. ―jimly: kpu bisa undangkan sendiri pkpu pencalonan caleg.‖ republika online. 17 june 2018. https://republika.co.id/share/paf5cy428. sanit, arbi. 2015. ―pematangan demokrasi dan sistem politik indonesia: kendala pelembagaan dan kepemimpinan.‖ jurnal politik 1 (1). https://doi.org/10.7454/jp.v1i1.12. simanjuntak, nikolas. 2017. hak-hak asasi manusia dalam soliloqui pertarungan peradaban. jakarta: erlangga. 142 http://journal.unnes.ac.id/sju/index.php/jils emanuel raja damaitu jils 4 (1) may 2019, 129-142 sirajudin, sirajudin, fatkhurohman, & zulkarnain. 2016. legislative drafting: pelembagaan metode partisipatif dalam pembentukan peraturan perundang-undangan. malang: setara press. sirajudin, sirajudin, & winardi winardi. 2015. dasar-dasar hukum tata negara indonesia. malang: setara press. laws and regulations uud 1945 (undang-undang dasar 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) 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 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 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 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 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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 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 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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: 7fbf23940bd72055 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare jils (journal of indonesian legal studies) volume 5(1) 2020 267 available online at http://journal.unnes.ac.id/sju/index.php/jils book review the complicated conditions on indonesian law enforcement: a book review kumpulan catatan hukum, dr. reda manthovani sh llm, bhuana ilmu populer (kelompok gramedia), jakarta, 2017, 234 pages, isbn 978-602-394-630-3 nabilla banuati faculty of law, universitas negeri semarang, indonesia  nabillabanuati49@students.unnes.ac.id https://orcid.org/0000-0002-2163-1587 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 : kumpulan catatan hukum author : dr. reda manthovani language : bahasa indonesia publisher : bhuana ilmu populer, jakarta pages : 234 pages year : 2013 how to cite banuati, n. (2020). the complicated conditions on indonesian law enforcement: a book review kumpulan catatan hukum, dr. reda manthovani sh llm, bhuana ilmu populer (kelompok gramedia), jakarta, 2017, 234 pages, isbn 978-602-394-630-3. jils (journal of indonesian legal studies) 5(1), 267-276 https://doi.org/10.15294/jils.v5i1.34790. 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 268 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils this book is a collection of writings or short notes made by the author to be published in various media both print and online in the period 2014 to 2016. the theme of the various writings or notes is in accordance with the position or research that the author is living in certain interesting moments attention for example case on the migration of indonesian workers in hong kong. this book is a collection of writings or short notes made by the author to be published in various media both print and online in the period 2014 to 2016. the theme of the various writings or notes is in accordance with the position or research that the author is living in certain interesting moments attention for example case on the migration of indonesian workers in hong kong. the writer's notes were produced when the writer worked at the indonesian consulate general in hong kong as the technical attaché of the prosecutor's office. after the author served as chief prosecutor since mid2015, the notes or writings produced were related to events or legal moments that occurred at that time, for example notes about pre-trial. notes about the pre-trial court are the thoughts of the writer when the decision made by the judge sarpin was phenomenal which was strengthened by the constitutional court's ruling on the expansion of the pre-judicial object. thus, in a nutshell it can be said that the collection of writers' notes in this book is a collection of thoughts that are manifested in writing / brief notes at certain moments that attract the author's attention. illegal indonesian migrant workers returns in hong kong and macau vs reality policy head national agency for the placement and protection of indonesian workers (bnp2tki) nusron wahid, on thursday, december 12, 2014, said that the government would repatriate around 1.8 million nonprocedural migrant workers abroad. which has no contract. according to him, the majority of non-procedural, overstayed and illegal migrant workers are currently in malaysia, namely 1.2 million people and the rest are scattered in the middle east, korea, taiwan and hong kong. to understand this, it is necessary to explain the notion of nanoscroscopic tki. according to dictionary.com the procedural term as a process that is in accordance with http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 269 available online at http://journal.unnes.ac.id/sju/index.php/jils the law / regulation, so that nonprocedural can be defined as a process that is not in accordance with the law /regulation and in this case the process of placing tki in accordance with law no.39 of 2004 concerning to placement and protection of indonesian workers and labor regulations in the destination country according to the director general of the placement of the ministry of manpower, rena usman, as a result of improper procedural procedures, indonesian citizens often go abroad using tourist visas. then the citizen was upgraded to a foreign worker in the country by being given a work visa. but without having a work contract that results in no clarity of wages and other workers' normative rights, so that the legal status of the indonesian citizen will eventually become an illegal tki. in addition to non-procedural, illegal migrant workers can also occur when a person who initially worked legally but ran out of work visa, and still continue his work without extending a work visa, so that his presence is considered illegal or overstayed. in addition, there are also tki who have a work visa but work not in accordance with the agreed work contract, the legal conditions in connection with the policy of returning non-procedural labor migrants & hong kong requires a somewhat different handling, due to the problem many migrant workers with problems in hong ko do not want to be repatriated. for this reason, it is necessary to develop into the ins and outs of illegal tki in hong kong. to complete the problem above, it is also necessary to discuss about migrant workers in macau there are many nonprocedural labor migrants, overstayers and other forms of worker relief in hong kong and macau? how did that happen? can the repatriation of nonprocedural migrant workers also be considered illegal workers management in foreign countries in hong kong and macau? indonesian migrant workers in hong kong workers who work as domestic helper in hong kong or known as indonesian migrant workers (pmi) based on hong kong immigration data as of april 2014 totaled around 151.416 people. that number is the second largest after the philippines amounting to 167.195 people. based on bnp2tki data, the departure of migrant workers to hong kong in 2011 was 50.301, in http://journal.unnes.ac.id/sju/index.php/jils 270 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils 2012 45.478 in 2013 were 41.769 and 2014 were 30.208. whereas the repatriation of troubled indonesian citizens from hong kong at bpk-tki selapajang tangerang in 2011 amounted to 1,808, in 2012 there were 1.215 and in 2013 amounted to 223. looking at the data in the case of ole aka ounce de seen an increase in the number of indonesian citizens working in hong but there is a decrease in the number of indonesian citizens dispatched to hong kong and a drastic reduction in the number of repatriated indonesian citizens who have problems yes looking at the data above, raises the question whether there are non-procedural migrant workers who can work in hong kong? based on article 11 paragraph (1) of act number 39 year 2004 concerning the placement and protection of indonesian migrant workers abroad. however, if the indonesian government does not have an agreement with the government of a tki user, then placement can still be done if the country already has legislation that provides protection to labor, indonesia does not have a written agreement with hong kong but hong kong has specific regulations governing domestic helpers, so that hong kong can be categorized as a country of placement of indonesian migrant workers. an indonesian who want to work in hong kong as domestic helpers must go through a hong kong employment agency. work contract forms are issued by hong kong immigration. the form consists of the names and addresses of the parties, duties or workloads that must be carried out, workers' normative rights that must be obtained, contracts for two years and can be extended. and most importantly, the work contract must be filled and signed by the parties and must be witnessed by the hong kong agency and witnesses from the workers, in this case interpreted signed by pptkis and known by the indonesian consulate general. in the absence of a consulate's signature, the visa / work permit will not be issued by the hong kong immigration service. this means that the system is in accordance with procedures as regulated in act no. 39 in 2004. in other words, the employment system in hong kong is procedurally in accordance with indonesia, so that in theory it is unlikely that non-procedural tkis will occur in hong kong unless there is a hong kong document falsification of the preconditions for issuing visas / work permits. then is there illegal tki in hong kong? based on the data collection conducted by the indonesian consulate general in hong kong between july and august 2014, indonesian citizens in the tailam center for http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 271 available online at http://journal.unnes.ac.id/sju/index.php/jils women consisted of 13 overstayers and illegal workers from 18 indonesian prisoners, in the lowu correctional institution there were 60 inmates convicted of overstaying from a total of 70 indonesian prisoners. of the total 73 indonesian citizens who were overstayed in detention in hong kong, just three among them who want return to indonesia to marry or care their children. and the others won't come to home and some of them apply non refoulement to hong kong's immigration office by international social services, be used by overstayed indonesian citizens is the threat of torture, kidnapping or killing committed by family or other parties if they return to indonesia, even though this is not true even though indonesia is ranked second in forging domestic legal registered in hong kong immigration however, in the number of indonesian non-refoulement claims 10% are still based on the filipino base which only amounts to 5%, of the total number of 7,960. this means that there are around 796 people who want to be repatriated to indonesia for various reasons. many indonesians who do not want to be repatriated (non-refoulement claims) or overstays will more or less base on the increase in crime rates committed by ex-pm men in hong kong. that is because the oven requires cost for their daily needs. whereas men are prohibited from doing work, so they do a lot of part time work in a number of good restaurants who want to remain on the right track. but not a few do other crimes so that the conduct of the former pmi was punished with two tumb, namely overstay and other crimes. causing indonesian citizens or pmi to become over and submit non-refoulment clams. from some of them were carried out on overstayers who were in dew yang outside the prison and the majority of them did not know and overstayer. some went along because they saw that only those who overstayed had better money because of the difficulty of moving agents, there were those who were granted. most of them live together with people in the same boat as rented jointly, even though sometimes those living with a partner or sleeping on the streets. overstayer is part-time and hush, but the work earns more than the pmi who works as domestic helper at the employer's house. more aspirations and broader freedoms left pmi tempted to follow in the footsteps of his colleagues who had overstayed. is it because of the difficulties in moving agents so that the pmi causes overstayers to choose? based on the along forum conducted by kiri hong kong on december 14, 2014, there were a number of pmi who were concerned about the online system which made it difficult for bmi to change agents because of locking) http://journal.unnes.ac.id/sju/index.php/jils 272 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils pmi so as not to change agents. the online system works for step in providing services and protection for indonesian citizens. it has been confirmed by the indonesian consulate general in hong kong that there is no prohibition on pmi to move agents as long as the pmi has paid the cost structure that must be paid for 6-7 months of installments. why does kjri have to make these requirements? that is because it has become an obligation for pmi to pay off the cost structure. because if before being paid but kjri gives approval to move agents, then kjri can be accused of providing assistance to pmi for not paying the cost structure. the cost structure should not be charged to pmi for storing pmi data working in hong kong, this is required obliged to provide decent work and livelihood to their citizens in accordance with act 27 paragraph (2) of the 1945 constitution. however, because the state still has not able to make this a matter, then the private parties was given the opportunity to participate in installments that should have been carried out by pptki themselves will still need funds to bail out the cost structure pptki also legalize indonesia's financial institutions non-bark und bind the cost structure over previously, in reality, indonesian financial institutions that had been prepared to analyze earlier did not perform well in practice. in fact, in practice, it asked for the support of hong kong financial institutions to finance the co-structure. so that financing by hong kong financial institutions is subject to interest rates of up to 30 percent, which must be borne. by comparison with the philippines, the selection process for the registration of accreditation for direct labor is carried out by the government and not by the private sector. this process is called the pre-employment service office (peso). whereas private parties (agents) are only beta to recruit only, handling all kinds of documents from the philippine overseas employment administration (poea). does the two weeks rule play a role in increasing the number of pmi employees in hong kong? it has become an ordinance or employment officer in hong kong if there is a domestic helper dismissed or asked to stop were only given two weeks opportunity to stay in hong kong until they got a new spell, according to several pmi who had cancelled contracted him because they were very worried about the pmi want found it difficult to find an employer who was bored. to be o after another trigger is income which is more broad which makes the pmi shifted due to overstaying and overstayers is suffering from illness which died on thursday, 1st december http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 273 available online at http://journal.unnes.ac.id/sju/index.php/jils 2014 at queen elizabeth hospital, kowloon because of drugs overdoses type of methamphetamine or ice and infected with the hiv virus or an overstayer with the initials sen killed in hong kong, the message will increase when the overstayer of the indonesian citizen has a child by contact with fellow overstayer. overstayer's repatriation of migrant workers in hong kong cannot be forced, because the overstayers do not want to be repatriated. it is proven that there are many overstayers who submit non-refoulement claims. upstream processes in bnp2tki and pptkis). because if the improvement is done downstream, then the solution is only temporary. there should be a structured improvement that starts and a recruitment process that is too long, to improve the quality of work training and certification institutions in indonesia so that tkis are sent according to the required qualifications, reduction the drastic structure that exists today, the determination of financial resources that are responsible and responsible, and the integration of the wni protection system, whether carried out at the representative or in the ministry of foreign affairs and bnp2tki. the 8-point agenda and its relations with indonesian policy in migrant workers the application of indonesian policy related to estimation country (hong kong) international migrant worker has become a more important issue for indonesia because the number indonesian labor working abroad increases significantly during the last five years. every year more than half a million indonesians migrate abroad to work as foreign employers hong kong. the indonesian migrant workers are predominantly women and work as foreign domestic workers. hong kong is one of the main destinations for indonesian's migrant domestic workers to work and in accordance with hongkong immigration data per april 2014 there are 151.416 indonesian domestic workers in hongkong. this number significantly contributes to the national revenue. in 2013 alone, it was estimated that indonesian migrant workers sent us$.587.336.254 to their home in indonesia. http://journal.unnes.ac.id/sju/index.php/jils 274 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils therefore, the indonesian government has the obligation to protects national to work overseas. at this very rare opportunity, the writer would like share with you on how the indonesian government set the national regulations to protect its national overseas in link with the un secretary general 8-point agenda for action in migration work and also the le of the indonesian consulate in hong kong in order to implement regulation. international legal instruments, convention on domestic workers the international convention on the rights of migrant workers and their families. including the ilo (international labor organization) convention in this regard, the indonesian government has ratified if the said convention related to human rights and migrant worker. the list of the ratified international convention appeal as annex 1.the indonesian government has fully recognize the need to workers and domestic workers in particular, it is reflected the indonesia government decision to ratify the international convention on the protection of the rights of all migrant worker and members of their families (migrant workers convention in 2012). in addition to support the domestic workers convention the indonesia president has attended his support at the 100 international labor conference in geneva, switzerland on 14 june 2011. in the year of 2004, the indonesian government introduced the legislation no.39 at the year 2004 subsequently, in order to implement the said regulation, the indonesian consulate in hong kong introduces several related undertaking such as: establishing an interlink (data base system on-line system), welcoming program. during stay program and exit program. the programs are made program in order to engaged more and also to protect indonesian nationals in hong kong, especially its immigrant workers, the consulate also provide a shelter and providing legal aids for every indonesian migrant workers who have legal problem provide a comprehensive protection to its migrant workers. reduce the cost of labor migration his point emphasizes reduction in cost to work migration, such as the transfer costs of remittances and fees paid. eliminate migrant exploitation, including human trafficking order to prevent the practice of migrant exploitation or human trafficking indonesia has already introduced law no. 21 of 2007 on eradication of human trafficking crime. to further strengthen it, the government has also ratified the un convention against transnational organized crime by law no.5 of the year 2009. the newest legal step by the indonesian government to http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(1) 2020 275 available online at http://journal.unnes.ac.id/sju/index.php/jils prevent, to crack and to punish the human trafficking is to ratified the protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the united nations convention against transnational organized crime. the said regulation has proven effective to and supplementary to other related regulation such as law no.23 of the 2003 on child protection, law no.13 of 2006 on victim and witness protection and law no. 39 of 2004 on placement and protection of indonesian migrant worker the policy of indonesian government is clear enough which declare that human trafficking is forbidden including in the area of migrant worker placement abroad. placement of migrant worker abroad should be done by the pptkis which has license to send and place migrant workers abroad. it is ruled in article 4 law no.39/2004. therefore, the individual or legal person who send and place migrant worker illegally is categorized as human trafficking and be punished by law no.39/2004 and put into the development agenda the indonesian government through bnp2tki has already put into development agenda. the government lie that the migrant workers are development asset. therefore the indonesian government has commitment to increase the quality of migrant worker. strengthen the migration evidence base in developing and strengthen the migration evidence base, bnp2tki has already instrument to improve services through information technology is known sisko-tkln (computerized system of foreign migrant worker. this online application system will support the placement assurance of migrant worker read accordance with legislation in force. therefore, to strengthen the service to indonesian migrant workers in hong kong, consulate will integrate data of the online system both np2tki and consulate. however, it will form and service to indonesian migrant worker in hongkong. integrated enhance migration partnership and cooperation on address the problem of migrant workers cannot be resolved by one side namely the sending state. it requires also the operation with the receiving state. the government of indonesia extends its appreciation to the government of hong make hong kong as a safe home for indonesian workers comprehensive regulation to regulate the foreign consulate also welcomed on the implementation namely the undertaking how to control and to monitor the indonesian workers in hong kong. http://journal.unnes.ac.id/sju/index.php/jils 276 jils (journal of indonesian legal studies) volume 5(1) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils in conclusion, the 8 points agenda generally have been implemented in the indonesian policy. to make this undertaking more effective, it requires the input and cooperation to uphold and improving arrangements for migrant workers. in my opinion the author explain very clearly and simply but the cases are difficult to understanding. about author nabilla banuati is undergraduate law student at faculty of law, universitas negeri semarang indonesia. she 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, she presented his paper on international conference in malaysia. 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: 7fbf23932ada209d • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare 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 jils (journal of indonesian legal studies) volume 4(2) 2019 217 available online at http://journal.unnes.ac.id/sju/index.php/jils research article legal crisis and trends of mass violence in indonesia indah sri utari 1 1 faculty of law, universitas negeri semarang, indonesia  indahsuji@gmail.com submitted: september 1, 2019 revised: october 10, 2019 accepted: november 11, 2019 abstract this study aims to explore the reasons for the problems that trigger broader mass violence, both in the form of structural conditions in society as well as the factors that trigger crime and social dynamics that trigger mass violence. the main research method used is a qualitative approach to the type of research criminally. the results of the research show that at the end of this time the social integration ties that are owned by the community are not so strong that the provocateurs of violence in the community are able to ravage the solidarity that is intertwined within the community. the joints of democratic society which should function to normalize normal social-political interaction relations, in the end actually caused mass violence, such conditions create anomistic situations occur, members of society both individually and in groups are so easy to play their own way. therefore, the legal institutions as a formal rule of the game and apply to everyone, are experiencing a crisis of authority. the fundamental reason why this happens is that there are often different legal decisions against each violator of the law. as a result, there is no certainty that the law is truly an objective norm that applies to all. people who have been relatively safe in the normalcy of their environment have turned into mutual suspicion. as a result of this, collective disappointment arises over legal institutions, so that losing motivation to obey the law people tend not to believe in the legal process, which results in acts of mass violence in the community. keywords: legal crisis; 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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(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 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). impact of computer appreciation in military technology, a commandant’s paper submitted to nigerian army school of military police, nigeria. school of postgraduate studies. abu (2010), regulations governing higher degree studies, nigeria. nigeria: abu press limited. schell, b.h. and martin, c. (2004). cybercrime: a reference handbook. santa barbara, california: abc-clio inc. sesan, g. (2010). the new security war, retrieved from http://www.pcworld.com/article/122492/the_new_security_war.htm #tk.mod-rel. shinder, d.l. (2002). scene of the cybercrime: computer forensics handbook. usa: syngress publishing inc. tade, o., & aliyu, i. (2011), social organization of internet fraud among university undergraduates in nigeria. international journal of cyber criminology, 5(2), 860-875. thomas, d. (2011). cybercrime in nigeria, retrieved september, 2011 from http://www.idgnews,net/ umar-ajijola, j, (2010a). microsoft combats cybercrime in nigeria, retrieved from http://www.pcworld.com/businesscenter/article/205051/cybercrime. umar-ajijola, j. (2010b). fighting cybercrime in nigeria, retrieved from http://blogs.technet.com/b/microsoft_on_theissues_africa/archive/201 0/12/9/fighting-cybercrime-in-nigeria-aspx. vladimir, g. (2005). international cooperation in fighting cyber crime, retrieved from www.crimeresearch.org. wall, d.s (2001), crime and the internet. london: routledge publisher. wall, d.s. (2007). cybercrime: the transformation of crime in the information age. cambridge, uk: polity press. yar, m. (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 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: 7fbf23932f62a631 • 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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(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 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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(2019). perlindungan hukum terhadap isteri yang menjadi korban kekerasan dalam rumah tangga oleh suami. mizan, jurnal ilmu hukum 7(2), 51-54. united nations educational scientific and cultural organization (unesco). (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 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 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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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. (2007). peradilan bebas dan contempt of court. jakarta: diadit media. agustina, s., & isra, s. (2015). obstruction of justice: tindak pidana menghalangi proses hukum dalam upaya pemberantasan korupsi. jakarta: themis books. albanese, j. s., artello, k., & nguyen, l. t. (2019). distinguishing corruption in law and practice: empirically separating conviction charges from underlying behaviors. public integrity 21(1), 22-37. brooks, g. (2019). criminal justice and corruption: state power, privatization and legitimacy. london: springer. desta, y. (2019). manifestations and causes of civil service corruption in the of developing countries. journal of public administration and governance 9(3), 23-35. gabrillin, a. (june, 2018) fredrich: mutlak kpk tak berwenang tangani kasusnya, kompas, 22 june, https://nasional.kompas.com/read/2018/06/22/14224431/fredrichmutlak-kpk-tak-berwenang-tangani-kasusnya?page=all. gareda, m. s. (2015). perbuatan menghalangi proses peradilan tindak pidana korupsi berdasarkan pasal 21 uu no. 31 tahun 1999 juncto uu no. 20 tahun 2001. lex crimen 4(1), 134-142. https://ejournal.unsrat.ac.id/index.php/lexcrimen/article/view/7009 grabova, p. (2014). corruption impact on economic growth: an empirical analysis. journal of economic development, management, it, finance, and marketing 6(2), 57-78. graeff, p., & mehlkop, g. (2003). the impact of economic freedom on corruption: different patterns for rich and poor countries. european journal of political economy 19(3), 605-620. 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://ejournal.unsrat.ac.id/index.php/lexcrimen/article/view/7009 jils (journal of indonesian legal studies) volume 5(1) 2020 255 available online at http://journal.unnes.ac.id/sju/index.php/jils hudi, n. (2019). implementation of article 21 of corruption eradication act on advocates performing their professional function. hang tuah law journal 3(1), 32-45. hutchcroft, p. d. (1997). the politics of privilege: assessing the impact of rents, corruption, and clientelism on third world development. political studies 45(3), 639-658. irham, m. a. 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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 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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"the position of convict as justice collaborator in revealing organized crime". padjadjaran jurnal ilmu hukum 8, no. 2 (2021); 255-274. https://doi.org/10.22304/pjih.v8n2.a5. uche, nnawulezi, and bosede remilekun adeuti. "examining the reproductive rights in the wake of covid-19 pandemic in nigeria". indonesian journal of law and society 2, no. 1 (2021): 2958. https://doi.org/10.19184/ijls.v2i1.22191. weinrib, ernest j. “civil recourse and corrective justice,” florida state university law review 39, no. 1 (2011): 273–297. http://journal.unnes.ac.id/sju/index.php/jils http://dx.doi.org/10.20956/halrev.v5i1.1195 http://dx.doi.org/10.20956/halrev.v7i3.2350 https://doi.org/10.22304/pjih.v8n2.a5 30 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils weinrib, ernest j. the idea of private law (oxford: oxford university press, 2012). weinrib, ernest j. “kantian right,” in the idea of private law (oxford: oxford university press, 2012). weinrib, ernest j. “the autonomy of private law,” in the idea of private law (oxford: oxford university press, 2012). weinrib, ernest j. “restitutionary damages as corrective justice,” theoretical 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 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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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: 7fbf239659e120cd • 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: 7fbf2395cda82007 • 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). 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: 7fbf2395ce552037 • 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: 7fbf23953cbe2007 • 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: 7fbf2394cc9c2037 • 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? 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: 7fbf23953cb42007 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare jils (journal of indonesian legal studies) volume 5(2) 2020 335 available online at http://journal.unnes.ac.id/sju/index.php/jils research article religions and legal regimes function in the protection of children akintunde abidemi adebayo faculty of law, adekunle ajasin university, akungba-akoko, nigeria  akintunde_adebayo@yahoo.co.uk submitted: march 21, 2020 revised: june 22, 2020 accepted: september 21, 2020 abstract religion provides the basis for the protection of human rights, namely, the right to life, the dignity of the human person, and right to property, among others. without prejudice or disrespect to other religions, this paper focuses on christianity religion and its provisions that protect the rights of children considering their vulnerability. this research emphasized that the holy bible contains measures to safeguard, protect and ensure the good as well as the proper upbringing of children. similarly, the united nations convention on the rights of the child 1989, oau charter on the rights and welfare of the child 1990 and the nigerian child rights act, 2003 provide for the protection of rights of children. the essence of these provisions is to ensure the smooth running of society and the betterment of humanity. this paper, therefore, examines the salient provisions of the holy bible and legal regimes to safeguard and protect the rights and interests of children. it concludes by highlighting the significant role of laws in the protection of the rights of children. it also shows that religion 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 336 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils plays a pivotal role in protecting the interests of children by instilling in members of the society, the needed respect for humanity and morality, which is mostly lacking in the modern era. it recommends, among other things that, government at all levels as well as religious leaders, should give priority attention to the protection of children. keywords: child; human rights; christianity; religion; rights of children http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 337 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………………. 335 table of contents ………………………………...………….….. 337 introduction ………………………………………………………. 337 protection of children in christianity ………………. 339 protection of rights of children under international, regional, and national regimes ... 347 conclusion ……………………………………………………..…… 355 recommendations ………………………………………………. 356 references …………………………………………………………… 359 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: adebayo, a. a. (2020). religions and legal regimes function in the protection of children. jils (journal of indonesian legal studies), 5(2), 335360. https://doi.org/10.15294/jils.v5i2.38049 introduction many religions have provided the foundation and basis for human rights, mutual respect and cooperation, morality, and peaceful co-existence in the society.1 there are many religions around the world namely, islam, hinduism, christianity, buddhism, judaism, among others.2 they are of varying sizes and influence and divided into denominations, congregations, tribes, faith groups, movements and religious bodies.3 they also have special provisions and measures to safeguard and protect the interests of the 1 m.m. ali khan, rescuing the first ones to be harmed and the last ones to be heard: big three divine religions and the rights of the children, (2019) 1 j. law & soc. policy, 69 (2019). 2 id., at. 70. 3 id., at. 71. http://journal.unnes.ac.id/sju/index.php/jils 338 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils vulnerable groups namely, children, women, and the elderly ones.4 for this paper, the discourse will, without prejudice to other religions, be limited to christianity religion. god’s anger is provoked when a child’s life is needlessly or deliberately taken and indicates to us how precious the lives of children are to god. “the people of israel and judah have provoked me by all the evil things they have done... they built high places for baal in the valley of ben hinnom to sacrifice their sons and daughters to molek, though i never commanded —nor did it enter my mind — that they should do such a detestable thing and so make judah sin.”5 similarly, women are to be honoured, protected and treated with respect because they are weaker vessels.6 it is worthy of note that, the holy bible having described women as weaker vessels who deserve protection further clarifies that the vulnerability of women has nothing to do with inferiority.7 for the protection of the elderly, the holy bible in the book of isaiah says “even to your old age i will be the same, and even to your graying years i will bear you. i have done it, and i will carry you, and i will bear you and i will deliver you.”8 the holy bible also emphasise the dignity of humanity and life, morality, responsibilities and according respect/honour to one’s parents, among others. for example, the bible speaks out against the mistreatment of children such as instances when children were sold as slaves or traded like commodities in the bible. “they traded boys for prostitutes, and they sold girls for wine to drink.”9 the protection of children from violence, ensuring the overall well-being of children, are some of the salient tenets of many religions. in addition, the religions also plays a vital role in augmenting the provisions of the legal frameworks on the protection of children through instilling respect for life and humanity in members of the religions. 4 id., at. 70. 5 the holy bible, jeremiah 32:32-35. (new international version). 6 the holy bible, 1 peter 3:7. (new international version). 7 the holy bible, galatians 3:28. (new international version). 8 the holy bible, isaiah 46:4. (new international version). 9 the holy bible, isaiah 10:2, ezekiel 22:7, jeremiah 7:6 and 22:3, zechariah 7:10 and malachi 3:5; matthew 18:6, mark 9:42 and luke 17:2. (new international version). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 339 available online at http://journal.unnes.ac.id/sju/index.php/jils protection of children in christianity in christianity, the importance of children cannot be overemphasised. children are considered as precious gifts from god.10 to this end, there are many scriptures in both the old and new testaments of the holy bible which underscore the need and importance of protecting the interests and rights of the child as well as seeing to their utmost care and well being. for instance, the holy bible in the old testament makes it an obligation for parents, particularly mothers to comfort, love and look after the well being of their children thus: “as a mother comforts her child, so will i comfort you; and you will be comforted over jerusalem”11 further, in the new testament book of mathew emphasises that a father is obliged and expected to love, care for, and provide for his children. “if you, then who are evil know how to give good gifts to your children, how much more will your father in heaven give good gifts to those who ask him.”12 a human rights-based approach does not mean that children take on the role of simply demanding what they want and stop respecting adults. instead, the christian community recognises children’s rights but also teaches children the responsibilities that accompany rights. for example, where children have a right to be listened to, they also have a responsibility to listen to others;13 where they have a right to go to school, it is their responsibility to attend school and to do their best.14 children should be given a chance to express both their rights and their responsibilities in society.15 some salient provisions of the holy bible will therefore, be examined in an attempt to do justice to the discourse on the protection of children’s interests in christianity. these rights are to be viewed in the context of god’s deep love for children and the high value he places on their well being, and the contributions they could make to the society. the rights 10 the holy bible, isaiah 8:18; genesis 33:5; hebrews 2:13. (new international version). 11 the holy bible, isaiah 66:13. (new international version). 12 the holy bible, mathew 7:11. (new international version) 13 paul gordon lauren, the evolution of international human rights: visions seen 11-13 (university of pennsylvania press, pennsylvania, 2011). 14 id., 12. 15 ali khan, supra note 1, at. 70. http://journal.unnes.ac.id/sju/index.php/jils 340 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils of children in the bible can be divided into four categories, namely, survival, protection, development, and participation rights.16 i. survival rights in the old testament book of isaiah, the bible emphasises the safeguards for children and their descendants yet unborn.17 the story of moses’ birth in the book of exodus is illustrative here. it shows how god uses all kinds of people to ensure the survival of a child. the statement, “the midwives feared god... they let the boys live”18 shows that god values the lives of children. god already had plans for moses’ life so when moses was born, he was protected by his mother, his sister, and even the daughter of pharaoh.19 the text of the bible leads to the assumption that god’s heart is for children to live and have all they need to survive and thrive. the bible has diverse accounts of children whose lives were in danger and who were able to survive with god’s help. another instance was when the widow’s dead son was brought back to life by elijah20 and by elisha.21 again in the new testament, paul brought a dead child back to life; “paul went down, threw himself on the young man and put his arms around him.”22 jesus further demonstrated his love for children and the desire for them to live during his earthly ministry. he healed children and brought them back to life in instances where they were dead.23 in the book of mathew, jesus informs his listeners that, “in the same way, your father in heaven is not willing that any of these little ones should perish.”24 on the need for parents to have and maintain a cordial and loving relationship with their children in order to ensure a peaceful co-existence 16 “the bible and children’s rights,” available online at http://stop-cwa.org/download/48 (accessed 5 february 2020). 17 the holy bible, isaiah 54:13. (new international version). 18 the holy bible, exodus 1:17. (new international version). 19 the holy bible, exodus 2. (new international version). 20 the holy bible, 1 kings 17. (new international version). 21 the holy bible, 2 kings 4. (new international version). 22 the holy bible, acts 20:10. (new international version). 23 the holy bible, luke 8:54, matthew 9:25, mark 5:41, luke 9:42, matthew 17:18 and mark 9:26-27. (new international version). 24 the holy bible, matthew 18:14. (new international version). http://journal.unnes.ac.id/sju/index.php/jils http://stop-cwa.org/download/48 jils (journal of indonesian legal studies) volume 5(2) 2020 341 available online at http://journal.unnes.ac.id/sju/index.php/jils and a violence free society, the bible provides thus: “the lord will turn the hearts of the fathers to their children, and the hearts of the children to their fathers…”25 the holy bible further makes it an obligation for parents, particularly mothers to comfort, love and look after the well being of their children thus: “as a mother comforts her child, so will i comfort you; and you will be comforted over jerusalem”26 also, emphasis was laid on the sanctity of life, particularly children in the book of deuteronomy of the old testament of the holy bible thus: “this day, i call heaven and earth as witnesses against you that i have set before you, life and death, blessings and curses. now choose life, so that you and your children may live.”27 god expressed his displeasure at the deliberate killing and sacrificing of children.28 god’s heart is clear in isaiah’s prophecy that “never again will there be... an infant who lives but a few days.”29 in light of the earlier mentioned scriptures condemning child sacrifice, it is important to stress that, god’s command to abraham to sacrifice his son, isaac in the book of genesis is not an endorsement of child sacrifice; god prevented the sacrifice from taking place and gave the command as an opportunity for abraham to demonstrate his obedience.30 god’s anger is provoked when a child’s life is needlessly or deliberately taken and indicates to us how precious the lives of children are to god. “the people of israel and judah have provoked me by all the evil things they have done... they built high places for baal in the valley of ben hinnom to sacrifice their sons and daughters to molek, though i never commanded —nor did it enter my mind — that they should do such a detestable thing and so make judah sin.”31 on care and provision for the child, the holy bible in the new testament book of mathew emphasises that a father is obliged and expected to love, care for, and provide for his children. it, therefore, becomes the right of children to be cared for and provided for by their parents. the book of matthew reads, “if you, then who are evil know how to give good 25 the holy bible, malachi 4:6. (new international version). 26 the holy bible, isaiah 66:13. (new international version) 27 the holy bible, deuteronomy 30:19. (new international version). 28 the holy bible, amos 1:13 and psalm 94:6; jeremiah 7:30-31, 19:5, and 32:35, ezekiel 16:20, 20:31, and 23:37-39. (new international version) 29 the holy bible, isaiah 65:20. (new international version). 30 the holy bible, genesis 22; james 2:21-23. (new international version). 31 the holy bible, jeremiah 32:35. (new international version). http://journal.unnes.ac.id/sju/index.php/jils 342 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils gifts to your children, how much more will your father in heaven give good gifts to those who ask him.”32 further, men were encouraged to have the size of family they can easily maintain and provide for. they must not have too many wives or children such that they will not be able to provide for their needs, train, guide, teach and nurture. to this end, the new testament of the bible says: “a deacon must be the husband of but one wife and must manage his children and household well.”33 also, in the second letter of paul to the corinthians, the bible records thus: “…after all, children should not have to save up for their parents, but parents for their children.”34 ii. protection rights the story of ishmael told in genesis shows the importance of protecting the interest of children to god, and how he can be intimately involved in keeping children safe.35 more importantly, the bible places a high premium and value on children. they are to be protected, loved, treasured and cherished by their parents and members of the society in which they live. it says this: “whoever welcomes one of these little children in my name welcomes me.”36 to further show the value and importance of children, child-like qualities were described as godly qualities. for instance, “…because you have hidden these things from the wise and learned and revealed them to little children…”37 jesus further demonstrated his love for children and showed their importance in the book of mark where he says: “…he said to them, let the little children come to me, and do not hinder them, for the kingdom of god belongs to such as these”38 and “and he took the children in his arms, put his hands on them and blessed them.”39 similarly, on the significance of children, the bible describes them in diverse beautiful ways. for instance, in the book of joel, they were described 32 the holy bible, mathew 7:11. (new international version). 33 the holy bible, 1 timothy 3:12. (new international version). 34 the holy bible, 2 corinthians 12:14. (new international version). 35 the holy bible, job 24:9, nehemiah 5:5, and joel 3:3.; joel 3:3; isaiah 21:8-20. (new international version). 36 the holy bible, mark 9:37. (new international version). 37 the holy bible, luke 10:12; mathew 11: 25 (new international version). 38 the holy bible, mark 10:14. (new international version). 39 the holy bible, mark 10:16; mark 10:15; acts 2:39. (new international version). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 343 available online at http://journal.unnes.ac.id/sju/index.php/jils as prophets.40 further, they were described as heritage and reward from god.41 in the book of psalms, children were described as arrows in the hands of a warrior and blessed is the man whose quiver is full of them, for they shall not be put to shame when they contend with their enemies.42 also, the book of psalms provides that “…your sons will be like olive shoots around your table”43and “children’s children are a crown to the aged, and parents are the pride of their children.”44 the bible speaks out against the mistreatment of children. references are made to instances where children were sold as slaves or traded like commodities in the bible. “they traded boys for prostitutes, and they sold girls for wine to drink.” 45 vulnerable children particularly are to be protected with warnings against oppressing and mistreating the fatherless.46 vulnerable children are described as those children that are at high risk of lacking adequate protection and care.47 further, the bible enjoins members of society to protect children.48 in the bible, the israelites were instructed to ensure that vulnerable children are provided for.49 “defend the weak and fatherless.”50 further, as part of the protection of the interests of children, the bible condemns those who cause harm or misguide children into destructive paths. “but if anyone causes one of these little ones who believe in me to sin, it would be better for him to have a large stone hung around his neck and be drowned in the depth of the sea.”51 protecting children is not only the responsibility of parents or those who work with children but the entire society.52 the bible shows that god wants every member of the community to be part of ensuring that the 40 the holy bible, joel 2:28. (new international version). 41 the holy bible, psalm 127:3. (new international version). 42 the holy bible, psalm 127: 3-5. (new international version). 43 the holy bible, psalm 128:3. (new international version). 44 the holy bible, proverbs 17:6; proverbs 20:7. (new international version). 45 the holy bible, isaiah 10:2, ezekiel 22:7, jeremiah 7:6 and 22:3, zechariah 7:10 and malachi 3:5; matthew 18:6, mark 9:42 and luke 17:2 (new international version). 46 the holy bible, deuteronomy 24:17-21. (new international version). 47 the holy bible, psalm 82:3; isaiah 1:17; “orphans and vulnerable children defined” available at http://hgsf-global.org/en/ovc/background/263-orphans-and-vulnerable-children-defined (accessed 5 february 2020). 48 the holy bible, deuteronomy 24:17-21. (new international version). 49 the holy bible, psalm 72:4 and 82:3, isaiah 1:17 and james 1:27. (new international version). 50 the holy bible, psalm 82:3. (new international version). 51 the holy bible, mathew 18:6. (new international version). 52 the holy bible, leviticus 20:22-25. (new international version). http://journal.unnes.ac.id/sju/index.php/jils http://hgsf-global.org/en/ovc/background/263-orphans-and-vulnerable-children-defined 344 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils children around them are safe and protected from harm.53 god talks about how someone who has sacrificed his child should be punished. he says, if the members of the community ignore the actions of the said man, and if they fail to put him to death, he would himself set his face against him. therefore, christians must make sure they are not ignoring situations of abuse and exploitation of children in the society. iii. development rights parents owe the duty to direct aright and shapen the lives and behaviours of their children properly through teachings, training and discipline. it is pertinent to note that, in christianity, children are seen as prone to disorder and misbehaviour therefore, they require constant corrections, guidance and discipline. also, children are considered born with original sin. original sin is that of the first man, adam, who disobeyed god by eating the forbidden fruit of knowledge of good and evil and as a consequence, humanity inherited the sin and guilt.54 therefore sinfulness is deemed to be in the inheritance of children so, education, chastisement, training are required to discipline and tame them. the bible in the book of proverbs says: “train a child in the way he should go and when he is old, he will not depart from it.”55 the same duty of physical discipline and chastisement of children to make them responsible and law-abiding members of the society was further emphasised thus: “folly is bound up in the heart of a child but the rod of discipline will drive it far from him.”56 it is also written in another portion of the holy bible thus: “do not withhold discipline from the child; if you punish him with the rod, he will not die.”57 similarly, “punish him with the rod, and save his soul from death.”58 again, parents and their children are encouraged and commanded to be law-abiding.59 parents particularly have an obligation to ensure that their children are law-abiding and obedient to lawful authorities bearing in mind that if children and other members of the society abide by the extant laws, 53 id. 54 the holy bible, romans 5: 12-19. (new international version). 55 the holy bible, proverbs 22:6. (new international version). 56 the holy bible, deuteronomy 22:15. (new international version). 57 the holy bible, deuteronomy 22:13. (new international version). 58 the holy bible, deuteronomy 22:14; ephesians 6:4. (new international version). 59 the holy bible, deuteronomy 32:46. (new international version). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 345 available online at http://journal.unnes.ac.id/sju/index.php/jils regulations and commandments, there will be peace and tranquillity in the home fronts and the larger society. deuteronomy 32:46 says: “he said to them, take to heart all the words, i have solemnly declared to you this day, so that you may command your children to obey carefully all the words of this laws.” in the same vein, the same book of deuteronomy further states the importance and benefits of abiding by laws thus: “for i command you today, to love the lord your god, to walk in his ways and to keep his commands, decrees and laws, then you will live and increase, and the lord god will bless you in the land you are entering to possess.”60 the holy bible urges children to submit themselves to the guidance, teachings, and training of their parents so that through the guidance and training, they can be moulded to become responsible adults who will pass on the same legacy to their descendants. in the book of proverbs, it is written thus: “listen to your father who gave you life and do not despise your mother when she is old.”61 also, “the rod of correction imparts wisdom but a child left to himself disgraces his mother”62 and “…teach them to your children and to their children after them.”63 still, on submission to parental guidance and trainings, the holy bible says: “these commandments that i give you today are to be upon your hearts, impress them on your children, talk about them when you sit at home, when you walk along the road, when you lie down and when you get up.”64 so also, in the new testament book of mark, children are encouraged to honour their parents and by extension, all and sundry in the society as this will promote orderliness and peaceful existence in the society.65 in addition, children are encouraged to honour their parents it is a condition for them to live long. it follows therefore that, there are rewards and blessings attached to that obligation.66 iv. participation rights children are to be given a sense of belonging and a right to participate in the affairs of society. for instance, in the book of second kings, it was naaman’s 60 the holy bible, deuteronomy 30:16. (new international version). 61 the holy bible, proverbs 23:22. (new international version). 62 the holy bible, proverbs 29:15. (new international version). 63 the holy bible, deuteronomy 4:9. (new international version). 64 the holy bible, deuteronomy 6:5-7; colossians 3:21. (new international version). 65 the holy bible, mark 7:10. (new international version). 66 the holy bible, colossians 3:20; ephesians 6: 1-3. (new international version). http://journal.unnes.ac.id/sju/index.php/jils 346 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils servant girl who he had taken captive from israel who gave naaman the advice that if only he could see the servant of god, elisha, he may be cured of his leprosy and naaman listened and was cured.67 sometimes, god works through children. children and young people are, therefore, encouraged to lead and to speak and not to see their age as an obstacle. children are a blessing to society and should be valued as such.68 children are also a significant part of the religious community, participating along with adults.69 children should be actively engaged and allowed to ask questions.70 the praise of children is powerful in that the bible provides that when children praise.71 the bible gives many examples of children being used by god: joseph was 17 when god was using him to help his father shepherd his flocks.72 david was a “little boy” when he fought goliath, the mighty man of philistine and defeated him.73 samuel served god as a child and god chose to speak through him.74 also, josiah was eight years old when he became king.75 uzziah was 16 year old when he also started reigning as king.76 it is pertinent to point out that, it was a child who provided the five loaves and two fishes that jesus used to feed the 5,000 people.77 another clear illustration of god’s willingness to use children and allow them to participate in the everyday life of the society is god choosing to restore mankind to himself by allowing jesus, his son to come into the world as a baby.78 “for to us a child is born, to us a son is given, and the government will be on his shoulders.”79 in general, it is apparent that the holy bible contains several provisions on protecting the interest and overall well being of children considering the fact that they are precious yet vulnerable, hence, the need to be protected. the old testament portrays the child as one who is overly 67 the holy bible, 2 kings 5:2-3. (new international version). 68 the holy bible, ruth 4:15, psalm 37:26, isaiah 29:23. (new international version). 69 the holy bible, deuteronomy 31:12-13, joshua 8:35, nehemiah 12:43, psalm 148:11, joel 2:16 and 10:7, matthew 21:15, john 4:46-53, acts 16:33, 18:7, 21:5. (new international version). 70 the holy bible, joshua 4:6. (new international version). 71 the holy bible, psalm 8:2. (new international version). 72 the holy bible, genesis 37:2. (new international version). 73 the holy bible, 1 samuel 17:41. (new international version). 74 the holy bible, 1 samuel 2-3. (new international version). 75 the holy bible, 2 kings 22. (new international version). 76 the holy bible, 2 chronicles 26. (new international version). 77 the holy bible, john 6: 9-11; jeremiah 1:7, 1 timothy 4:12. (new international version). 78 the holy bible, matthew 2:11, luke 2:8-40. (new international version). 79 the holy bible, isaiah 9:6 . (new international version). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 347 available online at http://journal.unnes.ac.id/sju/index.php/jils lacking in wisdom consequently, in need of constant guidance and training. the new testament, on the other hand, projects the child as a precious gift from god that must be cherished, protected, loved and cared for. protection of rights of children under international, regional, and national regimes the protection of the rights of children under international, regional and national legal regimes is important so as to ensure children are protected and have all they need to thrive and flourish, and achieve their god-given potentials. in examining the rights of children, this paper considers the united nations convention on the rights of the child (hereinafter referred to as the un convention on the rights of the child) as adopted by the 44th session of the united nations general assembly in november 1989.80 it also considers the provisions of the organization of african unity (now african union) charter on the welfare of the child, 1990 (hereinafter referred to as the oau charter on the welfare of the child, 1990).81 it is the first regional treaty on the rights of children in the continent of africa.82 it has similar provisions with the united nations convention on the rights of the child, 1990. these regional and international instruments seek to protect the child in all areas, provide basic necessities of life and giving special attention and care to the vulnerable children.83 nigeria as a nation, has also put in place several measures and frameworks towards the protection of the nigerian child. of particular note is the child rights act, 2003.84 the act protects the rights of the child as guaranteed under the constitution of nigeria 1999.85 since the issue of protection of children is contained in the residual 80 un convention on the rights of the child adopted by the 44th session of the united nations general assembly in november 1989. 81 oau charter on rights and welfare of the child, doc. cab/leg/24.9/49 (1990) entered into force november 29 1999. 82 id. 83 s. agiobu-kemmer, “baby prisoners – how they fair in captivity” nigerian guradian newspaper of 19 june 2016 available online at <http://m.guardian.ng/sunday-magazine/babyprisoners-how-they-fair-in-captivity/> (accessed 22 november 2019). 84 nigerian child rights act 2003. 85 constitution of the federal republic of nigeria 1999, chapter iv. see also child rights act 2003, s 3. http://journal.unnes.ac.id/sju/index.php/jils http://m.guardian.ng/sunday-magazine/baby-prisoners-how-they-fair-in-captivity/ http://m.guardian.ng/sunday-magazine/baby-prisoners-how-they-fair-in-captivity/ 348 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils list in the nigerian constitution 1999, it is expected that states will domesticate the act in their respective states having been enacted as an act of the national assembly of the federal republic of nigeria. while some states have gone ahead to do so, some of them have not.86 the states that are yet to domesticate the act include: bauchi, yobe, kano, sokoto, adamawa, borno, zamfara, gombe, katsina, kebbi and jigawa.87 the rights of children can be divided into three major categories.88 they are: welfarewhich means the right to be provided for;89 protection – it means children must be kept safe from all forms of dangers, exploitations or abuse and lastly, autonomy– the right of children to make choices.90 some of the basic rights of children protected by legal regimes are:91 i. right to life every child shall have the right to life.92 the state will ensure the overall development and survival of the child.93 a child cannot be sentenced to death, irrespective of the crime.94 this is because the nigerian constitution which is the supreme law of the land guarantees right to life of every nigerian, irrespective of the age.95 the life of a child could be threatened, jeopardised or taken in several situations.96 in reality, common situations in nigeria whereby a child is exposed to starvation, sexual abuse, inhuman, cruel, degrading, unhygienic conditions and lack of access to health care 86 o.l. niyi-gafar, & o. b. igbayiloye, adopting a rights-based approach towards the legal protection of the nigerian child, 4 akungba law journal, 78 (2016). 87 n. adebowale, “11 states in northern nigeria yet to pass child rights law” nigerian premium times newspaper of 11 may 2019, available at https://www.premiumtimesng.com/news/morenews/329511-12-states-in-northern-nigeria-yet-to-pass-child-rights-law-unicef-official.html (accessed 4 february 2020). 88 a.a. adebayo, protection of human rights of female inmates with wards in nigerian correctional facilities, 2 journal of law and judicial system, 44 (2019). 89 id. 90 s. olarinde, reflections on the basic rights of the nigerian child under the child rights act, 2003, 4 university of ibadan journal of private and business law, 87 (2005). 91 id., at. 87-88. 92 the constitution of the federal republic of nigeria 1999, s 33; un convention on the rights of the child 1989, art vi (1) and (2). see also oau charter on the rights and welfare of the child 1990, art v (1). 93 child rights act 2003, s 4. 94 id. 95 the constitution of the federal republic of nigeria 1999, s 33. 96 adebayo, supra note 88, at. 44. http://journal.unnes.ac.id/sju/index.php/jils https://www.premiumtimesng.com/news/more-news/329511-12-states-in-northern-nigeria-yet-to-pass-child-rights-law-unicef-official.html https://www.premiumtimesng.com/news/more-news/329511-12-states-in-northern-nigeria-yet-to-pass-child-rights-law-unicef-official.html jils (journal of indonesian legal studies) volume 5(2) 2020 349 available online at http://journal.unnes.ac.id/sju/index.php/jils which could lead to diseases and death of such a child could be interpreted as a violation of the right of the child to life.97 therefore, there is the need to protect the rights to life of every child.98 ii. right not to be separated from parents or guardians a child shall not be separated from his or her parents or legal guardians except where it has been determined by a competent judicial authority that such a separation would be in the best interest of the child.99 this provision is laudable as it will ensure that a child is not forcibly separated from his or her parents or legal guardians and that parents and legal guardians have the opportunity to nurture, care for and properly bring up their children.100 the right to not separate children from their parents and legal guardians also ensures that children get the best of care, protection and development from their parents and legal guardians under a good atmosphere.101 this presupposes that the common occurrence in many countries whereby children are forced to live with extended family members, friends or even given up to government welfare departments as a result of the disagreements, separation or divorce between their parents may be unhealthy for the overall development and protection of the child so should be discouraged. 97 agiobu-kemmer, supra note 83. 98 id. 99 un convention on the rights of the child 1989, arts ix (1) and xx; oau charter on the rightsand welfare of the child 1990, art xiv; child rights act 2003, ss 14, 16 and 27. see also agiobu-kemmer, supra note 83. 100 bangkok rules, r 58; r.a. aborisade, & o.o. balogun, dual punishment: mothers in nigerian prisons and their children, 19 african journal for the psychological study of social issues, 1 (2019). 101 oau charter on the welfare of the child 1989, art iv; aborisade, & balogun, supra note 100, at. 1-2. http://journal.unnes.ac.id/sju/index.php/jils 350 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils iii. right to freedom of expression every child shall be free to seek, receive, and impart information within the ambit of the law.102 this right must not be curtailed in any form as every child must be free to express himself or herself, freely impart information and ideas without any fear, threat, or insecurity.103 where this right is exercised, it will further help in the mental, physical and psychological development of the child in that they will be enlightened and knowledgeable, have the ability to make sound judgements, among others.104 iv. freedom of thought, religion, and conscience every nigerian shall have the right to thought, religion and conscience.105 it is pertinent to note that the nigerian child is not exempted from the enjoyment of this right.106 however, the parents and legal guardians of children shall provide direction and guidance to their children when it comes to the enjoyment of this right because it is presumed that children have limited knowledge, experience, exposure and direction about life in general because they are young.107 while admitting that this right exists, generally, it must be stated that children have limits to which they can independently practice, propagate or express their religious beliefs, they need to be properly guided by their parents or legal guardians so that they do not take wrong decisions that could jeopardise their future.108 102 constitution of the federal republic of nigeria 1999, s 39 (1); un convention on the rights of the child 1989, art xiii. see also oau charter on the rights and welfare of the child 1990, art vii. 103 agiobu-kemmer, supra note 83. 104 id. 105 constitution of the federal republic of nigeria 1999, s 38; oraegbunam, i., “islamic law religious freedom and human rights in nigeria” (2012) 2 (1) african journal of law and criminology, 1. see also oau charter on the rights and welfare of the child 1990, art ix (1) and (2). 106 child rights act 2003, s 7; agiobu-kemmer, supra note 83. 107 agiobu-kemmer, supra note 83. 108 agiobu-kemmer, supra note 83, at. 2-4. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 351 available online at http://journal.unnes.ac.id/sju/index.php/jils v. right to freedom of association and peaceful assembly every child shall have the right to freely associate with other children and to join peaceful assemblies within the limits of the law.109 a child should be free to associate with other children for recreation, for education and learning, in schools, religious places of worship, residential areas, among others.110 it should also be stated that a child may need the guidance and consent of their parents or legal guardians in the exercise of this right so that the child does not associate with bad companies or harmful groups.111 vi. right to privacy and family life every child shall have the right to privacy, family life and correspondence.112 there shall not be any arbitrary or unlawful interference with the enjoyment of this right.113 this means children should ordinarily not be forced to live with persons other than their parents or legal guardians against their will or be in a place that they do not want to be, except where such will be in the best interest of the said child. .for instance, this right will be curtailed in a situation where an innocent child would have to stay and grow in prison custody because his or her mother is remanded in custody pending her trial in court or serving prison sentence as it common in nigeria.114 vii. right of access to information every child shall be entitled to information from international and national sources that are capable of promoting the emotional, spiritual, moral, social, 109 un convention on the rights of the child, art xv; oau charter on the rights and welfare of the child, art viii; child rights act, s 6. 110 id. 111 agiobu-kemmer, supra note 83. 112 constitution of the federal republic of nigeria 1999, s 37; child rights act 2003, s 8. see also bangkok rules, r 64. 113 un convention on the rights of the child 1989, art xvi; oau charter on the rights and welfare of the child 1990, art ix. 114 aborisade, & balogun, supra note 100, at. 4; agiobu-kemmer, supra note 83. http://journal.unnes.ac.id/sju/index.php/jils 352 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils and physical well being of the child.115 the lack or limited access to information could adversely affect the overall development of a child who finds himself or herself in this kind of situation as such a child may not be able to compete favourably with his or her peers who have supervised access to information that could help them to develop and grow.116 viii. right to education every child shall have the right to be educated.117 in doing this, there should be a focus on the personality, talents, physical and mental abilities of each child.118 he or she should be taught about respect for human rights, preservation of societal culture and values, tolerance, mutual respect, honesty, loyalty, respect for the environment, among others.119 the sad reality in many countries, particularly the developing ones, is that many children of school age are out of school mainly due to poverty, illiteracy, ignorance, among others.120 an uneducated child may end up as a miscreant or criminal who will constitute a problem for society in the future.121 having posited that every child has a right to education, it is also imperative to state that the governments at all levels must put the appropriate measures in place, such as, provision of free and compulsory education up to tertiary education level, provision of study materials, recruiting competent teachers to teach in schools, training and re-training of teachers, among others. ix. right to health care a child shall have the right to enjoy the highest attainable standard of health.122 the government, therefore, must ensure it provides necessary health care services to every child, reduce infant and child mortality rate, combat diseases and malnutrition, provide safe drinking water, ensure quality health care for pregnant women and nursing mothers, among 115 un convention on the rights of the child 1989, art xvii. 116 un convention on the rights of the child 1989, art xvii. 117 child rights act 2003, s 15. 118 un convention on the rights of the child 1989, arts xxviii and xxix. 119 oau charter on the rights and welfare of the child 1990, art xi. 120 child rights act 2003, s 15. 121 id. see also agiobu-kemmer, supra note 83. 122 un convention on the rights of the child 1989, art xxiv; child rights act 2003, s 13. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 353 available online at http://journal.unnes.ac.id/sju/index.php/jils others.123 scholars like ibraheem observes that the nigerian state and indeed many developing states have not faired well when it comes to the realisation of this right.124 most children do not have access to good health care; some of them consequently develop hazardous diseases, while others who are unlucky, die.125 a large percentage of children in developing countries like nigeria are subjected to living in unhygienic environments.126 sometimes, pregnant women lack adequate pre-natal and post-natal attention and sometimes are left unattended when delivering their babies.127 some of the babies after delivery do not get proper medications and immunization.128 x. freedom from discrimination every child shall be free from discrimination on account of the circumstances of his birth, parents’ origin or race, ethnic, religious, sex, among others.129 therefore, the common nigerian practice of calling some children who were born outside wedlock ‘bastards’ will amount to discrimination against them based on the circumstances of their birth. similarly, a situation whereby a child has to live with his or her mother by virtue of the mother’s imprisonment will amount to a violation of the child’s right not to be discriminated against on any account.130 it will mean that such a child has been discriminated against based on the status of the mother as a prisoner.131 this is against the accepted international standard to the effect that every child shall be free from discrimination.132 123 oau charter on the rights and welfare of the child 1990, art xiv. 124 t.o. ibraheem, behind the prison walls: rights or no rights?, 2 international journal of innovative research and development, 780 (2013). 125 agiobu-kemmer, supra note 83; m.a. araromi, prisoners rights under the nigerian law: legal pathways to progressive realization and protection, 6 afe babalola university journal of sustainable development, law and policy 170, 177-179 (2015). 126 id. 127 aborisade, & balogun, supra note 100, at. 5. 128 araromi, supra note 25, at. 179. 129 constitution of the federal republic of nigeria 1999, s 42; un convention on the rights of the child 1989, art xxx. see also oau charter on the rights and welfare of the child 1990, art iii; child rights act 2003, s 10. 130 d.i dimkpa, the plight of women inmates in rivers state, nigeria, 31 pakistan journal of social sciences, 110-111 (2011). 131 id. 132 oau charter on the rights and welfare of the child 1990, art iii; child rights act 2003, s 10; un convention on the rights of the child 1989, art xxx. http://journal.unnes.ac.id/sju/index.php/jils 354 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils xi. protection from sexual exploitation and abuse every child shall be entitled to protection from sexual abuse and exploitation.133 as of today, this particular right stands as the most violated right of the child in nigeria going by the high statistics of sexual assault and molestation of children, particularly the female gender.134 apart from the aforementioned, it is also common in developing countries to find female children who are not up to the legal age of consent for marriage are also given out in marriage to male adults by their parents or legal guardians.135 for instance, sometimes in 2010, a former governor and a senator of the federal republic of nigeria got married to a 13 year old egyptian girl after paying the sum of $100, 000 as dowry to the girl’s parents.136 according to nzenwata, some of the factors responsible for early girl-child marriage in developing countries include; religion, tradition, poverty, illiteracy, among others.137 therefore, the parents or legal guardians of children must rise up to this challenge by providing adequate guide and protection to their children.138 also, parents, particularly illiterates must be enlightened about the dangers of giving out a female child to an adult male in marriage.139 they must ensure that their children 133 un convention on the rights of the child 1989, art xxxiv. see also oau charter on the rights and welfare of the child, arts xvi and xxvii; child rights act 2003, ss 11 (a) -(b), 31 and 32. 134 fabmungng, “child sexual abuse in nigeria: what hope for survivors?,” available online at http://medium.com/@fabmunng/child-sexual-abuse-in-nigeria-what-hope-for-survvivors8e761548b229 (accessed 20 january 2020); k. dasilva-ibru, “how can i recognise sexual abuse” the nigerian guardian newspaper of 13 december, 2019 available online at http://m.guardian.ng/features/how-can-i-recognize-child-sexual-abuse/amp (accessed 20 january 2020) 135 b. adebayo, “nigerian girl child marriage campaign” available online at https://edition.cnn.com/2019/05/25/africa/nigerian-girls-child-marriage-campaignintl/index.html (accessed 21 february 2020) 136 aljazeera, “nigerian senator marries girl of 13” available online at https://www.aljazeera.com/news/africa/2010/05/2010518858453672.html (accessed 21 february 2020). 137 c.b. nzenwata, negative effect of early girl child marriage on nigeria: the way forward, 8 international journal of scientific and research publications, 552 (2018). 138 “sexual exploitation of children in nigeria submission 29 march 2018” human rights council 31st session (october – november 2018), 2-3. 139 “country report on human rights practices 2017 – nigeria,” document no. 1430111us department of state, available online at <http://www.ecoi.net> (accessed 27 december 2018). http://journal.unnes.ac.id/sju/index.php/jils http://medium.com/@fabmunng/child-sexual-abuse-in-nigeria-what-hope-for-survvivors-8e761548b229 http://medium.com/@fabmunng/child-sexual-abuse-in-nigeria-what-hope-for-survvivors-8e761548b229 http://m.guardian.ng/features/how-can-i-recognize-child-sexual-abuse/amp https://edition.cnn.com/2019/05/25/africa/nigerian-girls-child-marriage-campaign-intl/index.html https://edition.cnn.com/2019/05/25/africa/nigerian-girls-child-marriage-campaign-intl/index.html https://www.aljazeera.com/news/africa/2010/05/2010518858453672.html jils (journal of indonesian legal studies) volume 5(2) 2020 355 available online at http://journal.unnes.ac.id/sju/index.php/jils are not in an environment where they can be exposed to some dangerous elements and paedophiles who could easily abuse them sexually. xii. protection from illicit use of narcotics and drug trafficking every child shall be protected from the illicit use and trafficking of narcotics.140 children should not be exposed to illicit use of narcotics and also prevented from hanging around adults or persons who are into drug use and trafficking.141 it must be said that the protection envisaged by this right may only be realised where a child grows up in a sane and serene society.142 closely connected to this right is the fact that children must be taught early in life about the dangers of using, dealing in or handling of hard drugs as these lessons most likely remain with them as they grow into adulthood. likewise, parents or legal guardians of children must also provide good examples in this regard as children have the propensity to do what they see their parents or legal guardians do. conclusion before the advent of what is now known as legal rights in contemporary time, religion played a vital role in protecting and shielding children from disrespect to humanity and ill-treatment by their parents and members of the larger society. the holy bible particularly contains many provisions on protecting the interest and overall well being of children because they are vulnerable and need to be protected. the old testament particularly describes the child as one who is overly lacking in wisdom therefore, in need of constant guidance and training of their parents. the new testament on the other hand, projects the child as a precious gift from god that must be cherished, protected, loved and cared for. interestingly, strict 140 un convention on the rights of the child 1989, art xxxiii; oau charter on the rights and welfare of the child 1990, art xxviii; child rights act 2003, ss 14 and 25. 141 id. 142 un convention on the rights of the child 1989, art xxxiii; oau charter on the rights and welfare of the child 1990, art xxviii; child rights act 2003, ss 14 and 25. http://journal.unnes.ac.id/sju/index.php/jils 356 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils adherence to the principles of religion particularly in the areas of respect for life and humanity could serve as the needed panacea to most of the challenges which children are faced with globally. therefore, religion plays a significant role in protecting the interests of children by instilling in members of the society the needed respect for humanity and morality which is currently lacking in this contemporary time. in the same vein, in the bid to protect the interests of children, they are entitled to some basic human rights as provided for by the constitution of nigeria as well as other international and regional instruments including, oau charter on the rights and welfare of the child, un convention on the rights of the child, among others. therefore, it is safe to conclude that, there is a link between the provisions of the holy bible on the protection of the interest of children and the fundamental human rights as found in various international, regional and national legal regimes. recommendations it is apparent that religion forms the basis for what is today known as legal rights and as such must be protected. it is pertinent to note that many countries, including nigeria, have failed in ensuring that children are adequately protected and catered for in consonance with international standards on the treatment of children.143 it is estimated that more than half of 27.1 million people who are internally displaced in over 50 countries around the world are children.144 they are exposed to dangers, malnourishment, sexual abuse, exposure to various health risks, just to mention a few.145 in a recent development, a top civil servant in a federal government agency in nigeria was arraigned in court on allegation of defiling a two year old girl in his office.146 it is therefore recommended thus: 143 o.o. olusegun & a. ogunfolu, protecting internally displaced children in armed conflicts: nigeria in focus, 9 notre dame journal of international and comparative law, 34-35 (2019). 144 id., at. 36. 145 id., at. 37. 146 o. eromosele, “nimc director araigned in court for defiling two year old girl” the nations newspaper of 5 march 2020, available online at https://thenationonlineng.net/nimc-directorarraigned-in-court-for-defiling-two-year-old-girl/ (accessed 7 march 2020). http://journal.unnes.ac.id/sju/index.php/jils https://the/ jils (journal of indonesian legal studies) volume 5(2) 2020 357 available online at http://journal.unnes.ac.id/sju/index.php/jils a. governments and religious leaders must give priority attention to the protection of the rights of children. all the rights of children as provided for under the nigerian constitution, various international, regional and national legal regimes should be guaranteed and protected. this should be done through enlightenment campaigns, advertisements, strict enforcement and monitoring. the enlightenment campaigns could take the forms of radio and television advertisements, campaigns in primary and secondary schools, talks in religious places of worship, among others. b. there is a need for governments to ensure a conducive environment is created for the enjoyment of the rights of children. an environment where they will not be gagged, threatened or intimidated in whatever form, whatsoever. c. of particular note is the rise in the rate at which children, both male and female alike get sexually abused and molested by adults in many societies globally. in nigeria for instance, the high incidences of sexual abuse of children, particularly girl children is appalling as it is estimated that six out of every ten children has been abused sexually. it is imperative for the government to stop this ugly trend by encouraging parents and wards of victims of such abuse to speak up and also put in place an effective mechanism for the arrest, prosecution and punishment of culprits. to this end, the initiative of the nigerian government to launch its sex offenders register in november 2019 is laudable. the federating states who have also launched the sex offenders register are, lagos and ekiti. however, the other 34 federating states in nigeria must take a cue from lagos and ekiti states of nigeria by opening sexual offences register in their various jurisdictions to record and circulate to members of the public, the identity, and photographs of sexual offenders. if these suggestions are implemented, they have the tendency to go a long way to discourage the prevalence of sexual offences in the society. d. governments of countries in the world must enact legislation in line with international best practices to protect the interest of children in their various jurisdictions. in nigeria for instance, since the issue of protection of children is contained on the residual list in the nigerian constitution 1999, it is expected that federating states will domesticate the child rights acts in their respective jurisdictions having being http://journal.unnes.ac.id/sju/index.php/jils 358 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils enacted as an act of the national assembly of the federal republic of nigeria.147 if this is done, it will further help in the protection of the children in such jurisdictions. while some federating states in nigeria have gone ahead to do so, a large number of them have not.148 references aborisade, r.a., & balogun, o.o. (2016). dual punishment: mothers in nigerian prisons and their children, african journal for the psychological study of social issues, 19(1), 1-17. adebayo, a. a. (2019). protection of human rights of female inmates with wards in nigerian correctional facilities. journal of law and judicial system, 2(11), 43-58. adebayo, b. (2019). “nigerian girl child marriage campaign” available online at https://edition.cnn.com/2019/05/25/africa/nigerian-girls-childmarriage-campaign-intl/index.html (accessed 21 february 2020) adebowale, n., “11 states in northern nigeria yet to pass child rights law” nigerian premium times newspaper of 11 may 2019, available at https://www.premiumtimesng.com/news/more-news/329511-12-statesin-northern-nigeria-yet-to-pass-child-rights-law-unicef-official.html (accessed 4 february 2020). agiobu-kemmer, s. (2016). baby prisoners – how they fair in captivity, nigerian guradian newspaper of 19 june 2016 available online at <http://m.guardian.ng/sunday-magazine/baby-prisoners-how-they-fairin-captivity/> (accessed 22 november 2019). ali khan, m.m. (2019). rescuing the first ones to be harmed and the last ones to be heard: big three divine religions and the rights of the children. journal of law and social policy, 1(1), 63-84. aljazeera. (2010). “nigerian senator marries girl of 13” available online at https://www.aljazeera.com/news/africa/2010/05/2010518858453672.html (accessed 21 february 2020). 147 constitution of the federal republic of nigeria 1999, chapter iv. see also child rights act 2003, s 3. 148 niyi-gafar, & igbayiloye, supra note 86, at. 78. http://journal.unnes.ac.id/sju/index.php/jils https://edition.cnn.com/2019/05/25/africa/nigerian-girls-child-marriage-campaign-intl/index.html https://edition.cnn.com/2019/05/25/africa/nigerian-girls-child-marriage-campaign-intl/index.html https://www.premiumtimesng.com/news/more-news/329511-12-states-in-northern-nigeria-yet-to-pass-child-rights-law-unicef-official.html https://www.premiumtimesng.com/news/more-news/329511-12-states-in-northern-nigeria-yet-to-pass-child-rights-law-unicef-official.html http://m.guardian.ng/sunday-magazine/baby-prisoners-how-they-fair-in-captivity/ http://m.guardian.ng/sunday-magazine/baby-prisoners-how-they-fair-in-captivity/ https://www.aljazeera.com/news/africa/2010/05/2010518858453672.html jils (journal of indonesian legal studies) volume 5(2) 2020 359 available online at http://journal.unnes.ac.id/sju/index.php/jils araromi, m. a. (2015). prisoners rights under the nigerian law: legal pathways to progressive realization and protection. afe babalola university journal of sustainable development, law and policy, 6(1), 170-183. country report on human rights practices 2017 – nigeria,” document no. 1430111us department of state, available online at <http://www.ecoi.net> (accessed 27 december 2018). dasilva-ibru, k. (2019). “how can i recognise sexual abuse” the nigerian guardian newspaper of 13 december, 2019 available online at http://m.guardian.ng/features/how-can-i-recognize-child-sexualabuse/amp (accessed 20 january 2020). dimkpa, d.i. (2011). the plight of women inmates in rivers state, nigeria. pakistan journal of social sciences, 31(1), 103-116. eromosele, o. (2020). “nimc director araigned in court for defiling two year old girl” the nations newspaper of 5 march 2020, available online at https://thenationonlineng.net/nimc-director-arraigned-in-court-fordefiling-two-year-old-girl/ (accessed 7 march 2020). fabmungng, f. (2020). “child sexual abuse in nigeria: what hope for survivors?,” available online at http://medium.com/@fabmunng/childsexual-abuse-in-nigeria-what-hope-for-survvivors-8e761548b229 (accessed 20 january 2020). ibraheem, t.o. (2013). behind the prison walls: rights or no rights?. international journal of innovative research and development, 2(4), 773-787. lauren, p.g. (2011). the evolution of international human rights: visions seen. pennsylvania: university of pennsylvania press. nigerian child rights act 2003. niyi-gafar, o.l. & igbayiloye, o.b. (2016). adopting a rights-based approach towards the legal protection of the nigerian child. akungba law journal, 4(1), 64-84. nzenwata, c.b. (2018). negative effect of early girl child marriage on nigeria: the way forward. international journal of scientific and research publications, 8(10), 548-559. oau charter on rights and welfare of the child, doc. cab/leg/24.9/49 (1990) entered into force november 29 1999. olarinde, s. (2005). reflections on the basic rights of the nigerian child under the child rights act, 2003. university of ibadan journal of private and business law, 4(1), 81-94. http://journal.unnes.ac.id/sju/index.php/jils http://m.guardian.ng/features/how-can-i-recognize-child-sexual-abuse/amp http://m.guardian.ng/features/how-can-i-recognize-child-sexual-abuse/amp https://the/ http://medium.com/@fabmunng/child-sexual-abuse-in-nigeria-what-hope-for-survvivors-8e761548b229 http://medium.com/@fabmunng/child-sexual-abuse-in-nigeria-what-hope-for-survvivors-8e761548b229 360 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils olusegun, o.o., & ogunfolu, a. (2019). protecting internally displaced children in armed conflicts: nigeria in focus. notre dame journal of international and comparative law, 9(2), 31-44. oraegbunam, i. (2012). islamic law religious freedom and human rights in nigeria. african journal of law and criminology, 2(1), 1-12. sexual exploitation of children in nigeria submission 29 march 2018” human rights council 31st session (october – november 2018), 2-3. the constitution of the federal republic of nigeria 1999 the holy bible, (new international version). un convention on the rights of the child adopted by the 44th session of the united nations general assembly in november 1989. […] “the bible and children’s rights,” available online at http://stopcwa.org/download/48 (accessed 5 february 2020). […] “orphans and vulnerable children defined” available at http://hgsfglobal.org/en/ovc/background/263-orphans-and-vulnerable-childrendefined (accessed 5 february 2020). about authors akintunde abidemi adebayo is a lecturer at the faculty of law, adekunle ajasin university, akungba-akoko. his research interests are concerning justice studies, legal aid, criminal law, as well as human rights, and child protection law. some of his papers have been published by several journals, such as “access to justice through legal aid in nigeria: an exposition on some salient features of the legal aid act (brawijaya law journal, 2020)”, “correctional facilities and coronavirus endemic: imperativeness of rescuing inmates in nigeria (kiu journal of humanities, 2020)”, “protection of human rights of female inmates with wards in nigerian correctional facilities (journal of law & judicial system, 2019)”, “electronic commerce in nigeria: the exigency of combatting cyber frauds and insecurity (journal of law, policy and globalization, 2016)”, and “the legal regime for the protection of asylum seekers and refugees: an overview of the geneva convention 1951 (nnamdi azikiwe university journal of international law and jurisprudence, 2015)”. http://journal.unnes.ac.id/sju/index.php/jils http://stop-cwa.org/download/48 http://stop-cwa.org/download/48 http://hgsf-global.org/en/ovc/background/263-orphans-and-vulnerable-children-defined http://hgsf-global.org/en/ovc/background/263-orphans-and-vulnerable-children-defined http://hgsf-global.org/en/ovc/background/263-orphans-and-vulnerable-children-defined 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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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 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 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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(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 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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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: 7fbf2394fd27206d • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare jils (journal of indonesian legal studies) volume 5(2) 2020 419 available online at http://journal.unnes.ac.id/sju/index.php/jils research article surveillance at sea: legal aspects of offshore installation’s utilization arie afriansyah1 , salsabila siliwangi surtiwa2 1 department of international law, faculty of law, universitas indonesia, depok, indonesia 2 faculty of law, universitas indonesia, depok, indonesia  arie.afriansyah@ui.ac.id submitted: june 9, 2020 revised: august 28, 2020 accepted: october 24, 2020 abstract as the sea possesses rich variations of resources, it also imposes threats to the security and defense interests of a nation. oil and gas exploration is one of the most important economic activities in the sea. in indonesia, hundreds of offshore oil and gas platforms comprise thirty percent of the total oil and gas production. this signifies the importance of their establishment to the economy. however, their potentials do not stop there. as indonesia is comprised of a very vast water area, the surveillance system still needs improvement. the article proposes to combine these interests into manifesting a simple surveillance system in offshore oil and gas platforms to improve defense and security systems, both for maritime routes in general and also the installations. the proposal prioritizes installations that are no longer operating, shifting their functions for other beneficial means. this is supported by the current law and regulations of the sea, both at the international and national levels. the international law of the sea implies that surveillance and data collection is allowed within the jurisdictional and territorial waters, whereas national levels allow functional shifting and defense system improvement in installations as long as it is coordinated with relevant ministries. keywords: legal enforcement; offshore installation; surveillance, unclos. 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/0000-0002-6845-0812 https://orcid.org/0000-0002-5202-6144 420 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 ……………………………………………………………….. 419 table of contents ……………………………..…...…………….. 420 introduction ………………………………….……………………. 420 regulation of offshore oil and gas installations…………………………………………………..……. 423 i. international law …………………………….….……………………. 423 ii. national law...……………………………………………………..….. 426 national interests in offshore oil and gas installations………………………………………………………… 429 i. economic interests…………………………………………………..... 430 ii. defense interests……………………………………………………..... 430 iii. security and safety interests………………………………………….. 431 efforts in increasing defense and safety issues through oil and gas offshore installations………. 432 relevant cases……………………………………………………… 438 i. us-iran oil platforms case…………………………………….…….. 438 ii. france-nz rainbow warrior case……………………………….….. 440 conclusion …………………………………………………..………. 442 references ……………………………………………………………. 443 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: afriansyah, a., & surtiwa, s. s. (2020). surveillance at sea: legal aspects of offshore installation’s utilization. jils (journal of indonesian legal studies), 5(2), 419-448. https://doi.org/10.15294/jils.v5i2.38943 introduction maritime strength often determines a nation’s power. this statement is undeniable, as the sea gives a significant contribution to the country. not http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 421 available online at http://journal.unnes.ac.id/sju/index.php/jils only the sea possesses a vast amount of resources, but it also serves a fundamental purpose as a nation's sovereignty front-line.1 however, with high potentials, come high-security risks; the vaster the sea, the bigger the threats a nation encounter. indonesia, as the biggest archipelagic state, is demanded to have strong maritime security and defense. several efforts include frequent political participation, both at the international and national levels; and procurement of military personnel, transport and weaponry through indonesian naval forces (tni al). however, the scope of waters is undoubtedly very vast, that the system may be limited in ensuring optimum security and defense in the sea.2 one of the security fields in discourse is oil and gas exploration at sea. oil and gas, considered by their economic value, is one of the biggest maritime industries in the world. the potentials can be up to usd 300 billion.3 oil and gas can be considered as essential energy resources, as they support many fields, including a state’s military units. in other words, these maritime resources may trigger conflicts between parties, both public and private sectors. on the other hand, oil and gas facilities across the seas are abundant, approximately more than 6000 offshore installations, serving the purpose of providing energy to the entire country.4 some of them are operating while others are not in operation anymore. the latter installations create “homework” for the coastal states on what to do with them. the narrative raises opportunities for the installations to operate for purposes other than they are initially meant to do. several legal discourses have previously emerged regarding the status of the offshore installations. hossein esmaeili mapped out the legal status of offshore platforms—specifically oil rigs—in the realm of international law and multidimensional issues that may revolve around them.5 elizabeth nyman has highlighted the trend of oil exploitation alongside maritime 1 tommy hendra purwaka, tinjauan hukum laut terhadap wilayah negara kesatuan republik indonesia, mimb. huk. fak. huk. univ. gadjah mada (2015). 2 diko oktara, tni: kekuatan angkatan laut masih kurang, tempo, jan. 26, 2016, https://nasional.tempo.co/read/739441/tni-kekuatan-angkatan-laut-masihkurang/full&view=ok. 3 assaf harel, preventing terrorist attacks on offshore platforms: do states have sufficient legal tools?, harvard nat. sec. journal (2012): 134. 4 marcel hendrapati, pembongkaran instalasi dan keselamatan pelayaran di indonesia (2014), 2. 5 hossein esmaeili, the legal regime of offshore oil rigs in international law (2017). http://journal.unnes.ac.id/sju/index.php/jils https://nasional.tempo.co/read/739441/tni-kekuatan-angkatan-laut-masih-kurang/full&view=ok https://nasional.tempo.co/read/739441/tni-kekuatan-angkatan-laut-masih-kurang/full&view=ok 422 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils conflicts that play a substantial part in its development.6 several pointed out long-time issues within the exclusive economic zone (eez), including military presence and its activities and what they mean for maritime security.7 these discourses have long stood out individually and rarely considered as relevant to one another. however, it appears that there is more to analyze beyond the borders of these stand-alone matters. the article tries to highlight the intersectional issues and potentials for better security and defense, especially in indonesia. one of the potentials at hand is the possibility to utilize existing commercial infrastructures to improve security and defense system. these includes both operational and no longer in operation (abandoned). with the numerous amounts of offshore infrastructures available, vast waters and the need for security and defense system improvement, indonesia can initiate an incorporative and collaborative approach to the highlighted problems. this proposal may be worth to consider as additional resources to strengthen indonesia’s capacity to control its vast maritime jurisdiction. this paper starts by analyzing the legal status, both at the national and international level, regarding offshore oil and gas installations. it also identifies the role of these offshore installations in ensuring the economic, security and defense interests of indonesia. the context would include measuring the possibility of utilizing existing offshore installations as a complementary defense system. lastly, the authors analyze their findings in respect of maritime security and defense with similar previous cases as a reference, specifically in the eez and territorial waters. 6 elizabeth nyman, maritime energy and security: synergistic maximization or necessary tradeoffs?, energy policy (2017). 7 hyun-soo kim, military activities in the exclusive economic zone: preventing uncertainty and defusing conflict, 80 int. law stud. 9 (2006): and james e. bailey, the exclusive economic zone: its development and future in international and domestic law, 45 symp. law of the sea (1985). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 423 available online at http://journal.unnes.ac.id/sju/index.php/jils regulation of offshore oil and gas installations i. international law provisions related to offshore oil and gas installations can be found in the 1982 united nations convention on the law of the sea (unclos). unclos divides the water into several zones, including territorial waters, contiguous zone, high seas, continental shelf and eez. this division implies different rights, duties and consequences of any installations established within each area, including oil and gas installations. according to article 56 and 58 of the unclos, eez is a water zone within 200 miles from the line drawn from the land of a coastal state, where—evident to its name—the coastal state may enjoy resources within eez for commercial and exploration purposes. eez, in other words, can be conceived as an extension of the coastal state's jurisdiction.8 thus, the law of the coastal state governs any establishment and use of artificial islands, installations and other structures within the eez. other states or parties shall receiver freedom of overflight, freedom to lay submarine cables and pipelines in the exclusive zone and freedom of navigation.9 article 60 of the unclos states as follows: 1. in the exclusive economic zone, the coastal state shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of: a. artificial islands; b. installations and structures for the purposes provided for in article 56 and other economic purposes; c. installations and structures which may interfere with the exercise of the rights of the coastal state in the zone. 2. the coastal state shall have exclusive jurisdiction over such artificial islands, installations and structures, including 8 james e. bailey, the exclusive economic zone: its development and future in international and domestic law, 45 symp. law of the sea (1985): 1271. 9 hyun-soo kim, military activities in the exclusive economic zone: preventing uncertainty and defusing conflict, 80 int. law stud. 9 (2006): 258. http://journal.unnes.ac.id/sju/index.php/jils 424 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations. 10 unclos leaves it up to the coastal state to further regulate the establishment, use and removal of any installations and offshore rigs. the regulation shall be following the existing international norms and principles which unclos establishes and as long as it does not violate the rights and duties of other states.11 this also occurs to provisions regarding the protection of the installations. unclos gives coastal state jurisdiction, thus sovereign rights to exercise their laws and policies over installations. one of the rights is to establish safety zone around installations within the eez. however, since the specific regulation is left for coastal states to decide upon, the practice taken up by states is not in a uniformed manner.12 not only in eez, the establishment and use of artificial installations are also regulated within the continental shelf. the provision is mutatis mutandis to what is regulated within the eez, as reflected on article 80 of the unclos.13 oil and gas exploration activity within the continental shelf is also governed by the law of the coastal state, for any circumstances.14 in other words, the regulation for oil and gas installations in both areas is very diverse across the globe, as the coastal states govern it. even so, oil and gas installations take up many variations and sizes. these installations have very different levels of mobility, implying that some are permanent while another temporary. for temporary installations, the regulation is not the same with permanent installations explained above. they belong to the vessel category, as they possess similar features with vessels. the different categorizations may raise an issue of legal implication of the installation establishment. contrary to permanent installations, temporary installations are governed by the law of the flag country during mobile and do not engage in any exploration activities within the waters. however, the drilling vessel shall be governed by the law of the coastal state 10 convention on the law of the sea, dec. 10., 1982, art. 60 (1)-(2). 11 deanna fowler, “offshore oil: a frontier for international lawmaking,” journal of int. & comp. law xii (2012): 182-183. 12 yoshifumi tanaka, the international law of the sea (2019), 156. 13 convention on the law of the sea, dec. 10., 1982, art. 80. 14 id., art. 81. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 425 available online at http://journal.unnes.ac.id/sju/index.php/jils upon exploring such resources. thus, inconsistency in the application of the law for mobile drilling vessels is apparent.15 another concern in regulating oil and rig installations is when they are no longer operating. if the installations have reached a certain age when its productivity becomes less effective, several technical steps are in order. decommissioning aims to restore the quality of the environment surrounding the oil and gas exploration.16 decommissioning, however, is not explained in details within several international legal instruments, including geneva convention on the continental shelf 1958 (geneva convention), unclos, international maritime organizations (imo) guidelines and standards, nor convention for the protection of the marine environment of the north-east atlantic (ospar).17 unclos, for example, only obliges partial decommissioning with a minimum standard set by the competent international organization.18 in this context, the international organization regarded is imo. in 1989, imo adopted resolution a.672 (16) on guidelines and standards for the removal of offshore installations and structures on the continental shelf and in the exclusive economic zone. it instructed the removal of abandoned installations under the jurisdiction and further regulation of the coastal state.19 this provision is contrary to the geneva convention, where parties are required to do a full decommissioning. however, as states have the option to regulate further their management of eez and continental shelf, more specific procedures on how to practice decommissioning and its standards rely on the availability of national regulations.20 the issue pertaining to abandoned installations may, in fact, lead to environmental issues, health and safety implications and encourage 15 hossein esmaeili, the legal regime of offshore oil rigs in international law (2017), 26. 16 erdina arianti & abd ghofur, teknologi decommissioning anjungan lepas pantai terpancang pascaoperasi, inovtek polbeng (2019), 272. 17 b. a. hamzah, international rules on decommissioning of offshore installations: some observations, mar. policy (2003), 339. 18 convention on the law of the sea, dec. 10., 1982, art. 60 (3). 19 international marine organization resolution a.672 (16), guidelines and standards for the removal of offshore installations and structures on the continental shelf and in the exclusive economic zone (19 october 1989) available at http://www.imo.org/en/knowledgecentre/indexofimoresolutions/assembly/documents/a.67 2(16).pdf. 20 e.d. brown, “decommissioning of offshore structures: progress report on legal obligations,” 1 oil and petrochemical pollution (1982): 139. http://journal.unnes.ac.id/sju/index.php/jils http://www.imo.org/en/knowledgecentre/indexofimoresolutions/assembly/documents/a.672(16).pdf http://www.imo.org/en/knowledgecentre/indexofimoresolutions/assembly/documents/a.672(16).pdf 426 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils dumping platforms. sadly, this practice is done oftentimes, without actual follow-ups regarding the liability.21 however, the existence of abandoned oil and gas offshore installations may open a possibility to utilize the installations for purposes other than oil and gas exploration. these issues revolving offshore installations within international law continues as a discourse in the national legal system of the coastal state. in the context of indonesia, it is crucial to highlight to what extent its national law governs the matter of oil and gas regulation utilization. it is further discussed in the following sub-section of the paper. ii. national law philosophically, indonesia concedes that all resources available should be used for the utmost prosperity of the people under the management of the state.22 it is according to the economic constitution of a nation, in which assets ownerships are different between which can be monopolized by the state and which can be operated by private sectors.23 indonesia, among many others, has adopted unclos. the ratification of unclos is further realized through national and regional regulations. they may impose these regulations with the notion that it does not imply that the coastal state owns the eez. however, even the distinction between ownership and sovereignty in unclos is quite unclear.24 nevertheless, such concept of sovereign right within the eez, in practice has quite clear self-explanation.25 thus, indonesia as a coastal state should not be in doubt to utilize its rights on this area as it has solid legal basis under national and international law. indonesia regulates its activities in eez through law no. 5 of 1983 concerning exclusive economic zone. the content is similar to the provision of unclos regarding eez, as the law is its direct derivation. it highlights exploration and exploitation activities and how to obtain permission in doing so. however, it limits activities other than exploration and 21 seline trevisanut, decommissioning of offshore installations: a fragmented and ineffective international regulatory framework, in the law of the seabed (2020), 432. 22 indonesia, undang-undang dasar negara republik indonesia 1945, ps. 33 (3). 23 jimly asshiddiqie, konstitusi ekonomi (2006), 208-209. 24 william e. hughes, fundamentals of international oil & gas law, (2016), 231. 25 arie afriansyah, dila paruna, rania andiani, (un)blurred concept of sovereign rights at sea: implementation context, 16 law reform (2020), 133-143. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 427 available online at http://journal.unnes.ac.id/sju/index.php/jils exploitation within the eez to only scientific research, bio-conservation and maritime environmental protection.26 the law also does not specifically mention the legal status of specific installations within the eez, including offshore oil and gas installations. under indonesian law, offshore oil and gas installations are mentioned in law no. 32 of 2014 concerning the sea. this law regulates them generally as installation at the sea. as a derivative of the law, recently, the government issues government regulation no. 6 of 2020 concerning installation at the sea (government regulation no. 6 of 2020). government regulation no. 6 of 2020 distinguishes the different legal standings of installations in accordance with the water area they are located. the area is categorized based on unclos water categories. among the functions mentioned, oil and gas exploration is included. according to government regulation no. 6 of 2020, buildings and/or installations related to oil and gas exploration includes offshore platforms, floating platforms, underwater platforms, pipelines and other supporting facilities.27 the establishment of these installations should pay attention to safety zone determined by the minister in charge of navigation affairs to ensure both the safety of navigation and the installations.28 this provision is in support of article 60(4) of unclos. however, unlike unclos, government regulation no. 20 of 2020 translates safety zone into two derivative zones; a restricted zone is placed within 500 meters of the outer side of the installations and a limited zone in a distance of 1,250 meters from the restricted zone.29 the regulation is still acceptable under unclos, as it still allows the establishment of other installations or any navigational support facilities—as long as it is permitted by the minister.30 government regulation no. 20 of 2020 also allows the utility of installations other than their main purposes if they no longer serve them, as long as the means are communicated and permitted by relevant ministers.31 a review shall be conducted prior to the shift of the purposes by ministers 26 indonesia, undang-undang tentang zona ekonomi ekslusif indonesia, uu no. 5 tahun 1983, ln. 44, tln. 3260 (1983), art. 1. 27 indonesia, peraturan pemerintah tentang bangunan dan instalasi di laut, pp no. 6 tahun 2020, ln. 26, tln. 6459 (2020), see art. 3 (9). 28 indonesia, peraturan pemerintah tentang bangunan dan instalasi di laut, see art. 27 (1). 29 indonesia, peraturan pemerintah tentang bangunan dan instalasi di laut, see art. 27 (3). 30 indonesia, peraturan pemerintah tentang bangunan dan instalasi di laut, see art. 27 (6) 31 indonesia, peraturan pemerintah tentang bangunan dan instalasi di laut, see art. (1). http://journal.unnes.ac.id/sju/index.php/jils 428 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils in charge of these affairs and of the maritime and fishery affairs.32 this is to ensure the safety and security of navigation, as well as the location of the installation in question. meanwhile, offshore oil and gas installations are regulated explicitly in regulation of minister of transportation no. 129 of 2016 concerning shipping lanes at sea and constructions and/or installations in waters as one of the offshore installations and buildings. the general provision of this regulation mentions specific types of infrastructure which are considered as offshore exploration and exploitation installations. the regulation highlights the relation between the establishment of these installations to the safety of shipping and navigation lanes. in regard to their functions and safety, these installations are regulated through regulation of minister of energy and mineral resources no. 18 of 2018 concerning safety inspections of installations and equipment in oil and gas business activities (regulation 18/2018). in this regulation, oil and gas installations are defined as a set of integrated tools in a system that operates in oil and gas activities.33 other related laws and regulations— though not directly—to offshore oil and gas installations include law no. 22 of 2001 concerning oil and gas (oil and gas law). in this law, offshore installations are not explicitly mentioned. they are referred to as upstream oil and gas management instead. the central state company in charge of conducting the function is pertamina, but this provision does not limit the state to issue permits or make contracts with other private companies through open tender by minister of energy and mineral resources.34 this shows that not only indonesian offshore oil installations, but foreign installations are also allowed to be established in indonesian waters as long as the indonesian government permits it. in addition to general regulations related to offshore oil installations, there are also specific regulations for certain areas. one of the regulations includes government regulation no. 23 of 2015 concerning collaborative management of oil and natural gas resources in aceh. as a special region, 32 indonesia, peraturan pemerintah tentang bangunan dan instalasi di laut, see art. 30 (2). 33 menteri energi dan sumber daya mineral, peraturan menteri tentang pemeriksaan keselamatan instalasi dan peralatan pada kegiatan usaha minyak dan gas bumi, permen esdm no. 18 tahun 2018, bn. 356 (2018) see art. 1 (6). 34 hanan nugroho, pengembangan industri hilir gas bumi indonesia: tantangan dan gagasan, perenc. pembang. no. ix (2004). 3. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 429 available online at http://journal.unnes.ac.id/sju/index.php/jils aceh won the trust to manage natural resources together with the central government. decommissioning in the territory of indonesia is regulated in several legal products. they include law no. 17 of 2008 concerning shipping, government regulation no. 17 of 1974 concerning supervision of offshore oil and gas exploration and exploitation and regulation of the minister of energy and mineral resources no. 1 of 2011. the first two instruments instruct full decommissioning of installations that are no longer operating. meanwhile, the latter provides detailed technicalities and procedures of decommissioning. the recently introduced government regulation no. 6 of 2020 brings into light the full direction of decommissioning. the regulation recognizes partial and full decommissioning, relocating and functional shifting.35 it elaborates conditions where decommissioning is considered necessary, criteria of installations to decommission, the authority responsible in decommissioning and the coordination chains that have to be established upon decommissioning the platforms.36 national interests in offshore oil and gas installations the regulation of offshore oil and gas installations is inseparable from the vital role of oil and gas in aspects of life in indonesia. as a large oil and gas exporter, indonesia is considerably dependent on its offshore oil and gas installations. hundreds of petroleum installations themselves have branched out in indonesia. as of 2019, there are 613 fixed offshore installations in indonesian waters.37 a hundred of them have been declared no longer functional.38 in this section, the national interests related to oil and gas installations are divided into three main discussion points, namely economic interests, security interests and defense interests. 35 indonesia, peraturan pemerintah tentang bangunan dan instalasi di laut (2020), see art. 28. 36 indonesia, peraturan pemerintah tentang bangunan dan instalasi di laut (2020), see art. 29. 37 arianti & ghofur, “teknologi decommissioning,” 272. 38 vadhia lidyana, “10 rig migas di laut jawa dan kalimantan mau dibongkar,” detik, sep 6, 2019, https://finance.detik.com/energi/d-4699078/10-rig-migas-di-laut-jawa-dan-kaltim-maudibongkar. http://journal.unnes.ac.id/sju/index.php/jils https://finance.detik.com/energi/d-4699078/10-rig-migas-di-laut-jawa-dan-kaltim-mau-dibongkar https://finance.detik.com/energi/d-4699078/10-rig-migas-di-laut-jawa-dan-kaltim-mau-dibongkar 430 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils i. economic interests as the country with the largest waters area in the world, indonesia has much potential at sea. it is undoubted that the sea has become one of the most significant contributors to the country's economic development, ranging from the utilization of marine biota such as fish to oil exploitation. it is well known that indonesia has abundant fishery resources in the eez. within this zone, indonesia having hard times to safeguard its benefits.39 indonesia has 60 (sixty) ocean basins that have the potential to contain petroleum. of the total basins, 40 (forty) ocean basins are offshore. all of these basins can produce oil totaling 11.3 billion barrels.40 in indonesia alone, investment in oil and gas has reached 20 billion us dollars in 2016 and is predicted to increase in 2017.41 offshore installations produce more than 30 percent of the total oil and gas production.42 with these abundant natural resources such as oil and gas, the country must be present to regulate related exploration and economic activities in the form of energy or resources. this state's control consists of several aspects, namely mineral rights, mining rights and economic rights.43 it is predicted that the number of oil and gas offshore installations in indonesia will soon decrease, as the majority of them have reached the age of 20 years and over, the maximum span of age for an offshore installation to maintain its productivity. this is concerning, as it would indicate the decrease in oil and gas production offshore. ii. defense interests offshore installation is considered vulnerable to attacks, either from other countries, terrorists, or non-state actors. these subjects then give rise to a 39 arie afriansyah, claiming fish in the disputed exclusive economic zone: indonesian practice, asia-pacific j. ocean law policy (2019): arie afriansyah, indonesia’s practice in combatting illegal fishing: 2015– 2016, in asian yearbook of international law (2019). 40 ridwan lasabuda, pembangunan wilayah pesisir dan lautan dalam perspektif negara kepulauan republik indonesia, j. ilm. platax (2013). 94. 41 pwc, oil and gas in indonesia. taxation guide (2016). 10. 42 hendrapati, pembongkaran instalasi, 12. 43 cut asmaul husna tr, strategi penguatan pengelolaan bersama minyak dan gas bumi di wilayah laut, j. konstitusi (2018). 154. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 431 available online at http://journal.unnes.ac.id/sju/index.php/jils complex response where, unlike the position between state and terrorists, most of the non-state actors are civil society.44 with the substantial amount of distance from the coast, offshore installations have a very minimal level of security. this is compounded by the increasingly sophisticated devices and resources possessed by terrorists or parties who threaten offshore installations. in a different context, oil and gas have been some of the most contested resources in the world. this is due to its high demand despite its limited availability. as oil will be scarce in such a short amount of time, it is not surprising for conflicts to emerge as the outcome. the conflict of natural resources may or may not reopen old wounds of the war and jeopardize a nation's sovereignty once more. that is why an enhanced defense mechanism, especially in the water for an archipelagic state like indonesia, is necessary. this issue is also accompanied by the activities done by foreign vessels that may appear to threaten the territorial integrity of the coastal state. offshore installations can be found in both indonesia archipelagic sea lanes (alki) and eez. as they are very close with international shipping and travel routes, they are prone to threats, thus becomes victims of armed robberies and violent attacks.45 it is undeniable that defense and naval power have been strengthened over the past few years. however, the effort cannot be optimum to protect all kinds of installations and vessels in indonesia's vast waters. this situation calls for a remote system which helps in monitoring the area in real-time. several suggestions include drones and underwater vessels; however, this system is still not enough to protect these vessels and installations. iii. security and safety interests in addition to defense issues, security issues are also an essential discussion in the procurement of offshore installations. this is the case as the offshore installation conducts exploration activities. this activity is related to 44 elizabeth nyman, maritime energy and security: synergistic maximization or necessary tradeoffs?, energy policy (2017). 313. 45 patrik kristhope meyer, achmad nurmandi & agustiyara agustiyara, indonesia’s swift securitization of the natuna islands how jakarta countered china’s claims in the south china sea, asian j. polit. sci. (2019), 3. http://journal.unnes.ac.id/sju/index.php/jils 432 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils substances that are flammable in large quantities. the absence of adequate action or response in responding to these two main problems then exacerbates the situation.46 offshore platforms are very vulnerable, complicated and expensive to construct. the positioning of offshore platforms should be strategic and safe. however, many sites considered safe and potential for offshore platforms are established lie within the archipelagic sea lanes.47 an example of this situation is the establishment of 16 offshore oil installation between seribu islands and sumatra island. as explained in the previous sub-section, the platforms are within the risk of being interfered with and, vice versa, interfering with the international shipping routes.48 in the realm of national law, government regulation no. 129 of 2016 has determined several types of security and safety areas around offshore buildings and installations. these areas include prohibited areas and restricted areas. the prohibited area is at 500 (five hundred) meters from the outer side of the building, while the restricted area is in the area of 1250 meters from the outer side of the restricted zone equivalent to 1750 meters from the outermost point of the building.49 however, this restricted zone might not be enough to determine the threats these platforms may encounter. efforts in increasing defense and safety issues through oil and gas offshore it is understood that welfare and safety are inseparable. security and safety threats may interfere with productivity.50 based on the high level of vulnerability, problems arise in relation to efforts in increasing security and 46 assaf harel, preventing terrorist attacks on offshore platforms: do states have sufficient legal tools?, harvard nat. sec. journal (2012): 134-135. 47 rafli maulana & khomsin khomsin, studi tentang optimasi peletakan anjungan minyak lepas pantai, j. tek. its (2017), 213. 48 anita musliana, “analisis hukum terhadap aktivitas pelayaran di kawasan alki ditinjau dari perspektif unclos 1982 dan pp no. 37 tahun 2002,” (bachelor of law program universitas hasanuddin in makassar, 2015), 75. 49 menteri perhubungan, peraturan menteri perhubungan tentang alur-pelayaran di laut dan bangunan dan/atau instalasi di laut, permenhub no. pm 129 tahun 2016, bn. 1573 (2016), ps. 80. 50 safril hidayat & arlan sidhha, indonesia’s maritime defence paradigm sine qua non global maritime fulcrum, j. pertahanan (2018), 137. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 433 available online at http://journal.unnes.ac.id/sju/index.php/jils defense in offshore installations. the situation around these offshore installations do not only concern their own aspects, but also the international obligations coastal states uphold as maritime nations, including to identify vessels, ensure safe distances between installations and passing vessels and, in a bigger context, ensure compliance of laws and policies of the coastal state.51 these points have led to the importance of surveillance system established. today, many maritime nations use layered and complex surveillance system, especially within the eez. but the idea does not only call for more advanced technology, but also effectivity on space utility and resources.52 one consideration is the use of offshore installations themselves for the implementation of defense and security activities, including offshore oil platforms. when this idea is contextualized with the interests and plans mapped by the government, it may become a compelling idea in upgrading the maritime surveillance system as a whole. in 2015, indonesia announced its intention to increase its military power in terms of safeguarding the nation in the waters by establishing more military posts in the eez.53 this is aligned to the main goal for indonesia to become the global maritime fulcrum, which encourages the installation of a monitoring system that is incorporated with existing benign and military constabulary functions.54 as the maritime defense system in indonesia is collaborative between different agencies and the military organ itself, this also calls for cooperation between the state and private sectors. in regard to the freedom of navigation and maritime traffic in general, the indonesian maritime security board (imsb/bakamla) has established several maritime regional coordinating center (mrcc) and regional coordinating center (rcc) in 3 (three) area of waters. these mrcc and 51 a. m. ponsford, ian a. d’souza & t. kirubarajan, surveillance of the 200 nautical mile eez using hfswr in association with a spaced-based ais interceptor, in 2009 ieee conference on technologies for homeland security, hst 2009 (2009), 87. 52 rahul roy‐chaudhury, maritime surveillance of the indian eez, strateg. anal. (1998), 49. 53 mohd agoes aufiya, indonesia’s global maritime fulcrum: contribution in the indo-pacific region, andalas j. int. stud. (2017), 144. 54 safril hidayat & arlan sidhha, indonesia’s maritime defence paradigm sine qua non global maritime fulcrum, j. pertahanan (2018), 141-142. http://journal.unnes.ac.id/sju/index.php/jils 434 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils rcc are equipped with electronic navigation chart (enc) and automated identification system (ais).55 ais, mainly, has used the integrated maritime surveillance system (imss) since 2008 with the aid from the united states. the system turned out to be challenging to operate as the system requires high maintenance and its further care should be coordinated with the united states. furthermore, this system relies upon the radar emitted by the vessel.56 the radar consists includes the vessel’s identification, thus it is important for the vessels to keep transmitting their sensors or signals, as it does not only help surveillance centers to locate these vessels, but also to identify them.57 it is undoubted that ais contributes substantially in monitoring and surveillance system of states, especially those qualified as maritime nations. however, as the system is considerably dependant, once a foreign vessel turns its signal off during its navigation, it is not only threatening surrounding installations, but also international traffic in general. if this surveillance system is applied in offshore oil and gas platforms, bakamla will receive an advantage in surveying mobilization and routes taken by foreign ships and other vessels. intelligence data can be gathered easier and with a more specific outcome. in addition, the maintenance of this surveillance system is relatively more affordable, as it is also assisted by private sectors. this initiative is justifiable under international law. the international law of the sea iterates that every state has the authority to make decisions regarding its maritime security and defense. as a note, unclos and other international law of the sea instruments do not explicitly explain the scope of authority coastal states have in terms of determining their security other than mentioning limits of military activities in certain waters. therefore, the authors conduct analysis through the interpretation of the articles contained in international sea law instruments that are implicit and negative. 55 susanto & dicky r. munaf, komando pengendalian keamanan dan keselamatan laut (2015), 162-163. 56 i gusti bagus dharma agastia & anak agung banyu perwita, building maritime domain awareness as an essential element of the global maritime fulcrum: challenges and prospects for indonesia’s maritime security, 6 jurnal hub. int. (2018): 6-7. 57 a. m. ponsford, ian a. d’souza & t. kirubarajan, surveillance of the 200 nautical mile eez using hfswr in association with a spaced-based ais interceptor, in 2009 ieee conference on technologies for homeland security, hst 2009 (2009), 88. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 435 available online at http://journal.unnes.ac.id/sju/index.php/jils the matter of regulating exploration and installations in eez is provided in article 56 of the unclos, which states: 1. in the exclusive economic zone, the coastal state has: a. sovereign rights for the purpose of exploring and exploiting […] with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; b. jurisdiction as provided for in the relevant provisions of this convention with regard to: i. the establishment and use of artificial islands, installations and structures; ii. marine scientific research; iii. the protection and preservation of the marine environment; c. other rights and duties provided for in this convention.58 in a simpler understanding, coastal states can decide upon the use of artificial islands, installations and structures. from the article, it can be inferred that unclos regulates marine scientific research. marine scientific research would include survey activities. however, the law does not define in detail what constitutes as 'survey activities', whether it is 'hydrographic surveys' or 'military surveys'.59 in fact, the discourse on whether survey activities are a part of marine scientific research is quite controversial. the ambiguity brought by this provision somewhat implies that any type of monitoring or research is allowed in the eez, including military surveys.60 however, there is quite an opposition to this view. several experts believe that while military data collection is allowed within waters whose coastal state claims sovereignty, unclos has made a clear distinction between hydrographic surveys and military surveys in international waters; this includes eez. such a survey is 58 convention on the law of the sea, dec. 10., 1982, art. 56. 59 robert beckman & tara davenport, imprimir the eez regime: reflections after 30 years, losi conf. pap. (2012), 27. 60 sam bateman, the regime of the exclusive economic zone: military activities and the need for compromise?, in law of the sea, environmental law and settlement of disputes: liber amicorum judge thomas a. mensah (2007), 576. http://journal.unnes.ac.id/sju/index.php/jils 436 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils governed by international law and not under the jurisdiction of the coastal states; thus, the consent of the foreign state whose vessels are navigating through the eez is required upon conducting surveillance.61 despite the two different viewpoints, the coastal state can still carry out military activities in the form of monitoring in eez, including in artificial installations in the zone. in addition, although unclos does not explicitly regulate military activities or what forms of defense can be carried out at eez, articles 56 and 58 governing eez have the same reference as articles 88-115 of the unclos governing offshore. thus, some forms of defense or regulated military activities related to offshore can be applied to eez.62 interestingly, the national law appears to support the idea of strengthening the maritime defense system through such engagement. government regulation allows initiations of related activities or interests other than the primary function of the building or installation. this is referred to in article 81 paragraph (6) government regulation no. 129 of 2016: “dalam hal terdapat kegiatan/kepentingan lain di sekitar bangunan dan/atau instalasi yang sudah terpasang, maka kegiatan/kepentingan tersebut wajib mendapat persetujuan tertulis dari pemilik/operator pelaksana bangunan/instalasi dengan memperhatikan zona keamanan dan keselamatan bangunan dan/atau instalasi yang telah ditetapkan.” (in the event that there are other activities/objectives surrounding the building and/or installation that have been installed, then the activity/objectives must obtain written approval from the owner/implementing operator of the buildings/installations by taking into account the security and safety zone of the building and/or the designated installation). the implicit meaning of this article is the permissibility of other activities other than oil and earth exploration activities around the building or installation. military activities in the form of monitoring (surveillance) 61 raul (pete) pedrozo, military activities in the exclusive economic zone: east asia focus, 90 international law studies (2014): 525-526. 62 jing geng, the legality of foreign military activities in the exclusive economic zone under unclos, utr. j. int. eur. law (2012), 24-25. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 437 available online at http://journal.unnes.ac.id/sju/index.php/jils may not be prohibited, as long as they get approval from the building owner or manager and pay attention to the existing arrangements related to security zones and buildings/installations. this system can be encouraged through public-private partnership (ppp) scheme, allowing private sectors to benefit from the surveillance system.63 as for non-operating installations, the innovation to reuse the installations for other purposes is encouraged. several proposals include creating fishery conservation sites, fishery cages64, artificial coral reef tourism sites65, maricultural sites, power and water desalination stations66 and many others. this proposal is allowed by the recent government regulation no. 6 of 2020, where non-operating installations are allowed to be functionally shifted for other beneficial means, including for the defense and security interests.67 the proposal may be coordinated with relevant ministers, including the minister of defense.68 this way, the maintenance will also be optimum for both functions. the innovation will not only benefit the indonesia military force in the matter of defense but also help in enhancing security and safety for the installations. the benefits of this proposal extend to other sectors of maritime issues. the system will help to protect the sovereign rights of the coastal state—indonesia—in the eez. as one of the most frequent issues encountered within the eez is illegal, unreported and unregulated (iuu) fishing, the surveillance system will ensure better monitoring of such activity. it is commonly known that poor control and surveillance system (mcs) has contributed to the excessive numbers of iuu fishing activities.69 indonesia is not foreign to iuu fishing issues while also having the need to optimize its maritime security and defense system. 63 ema, amiruddin saleh, heri budianto, development discourse of the world maritime axis: study on critical policy, 16 jurnal komunikasi pembangunan (2018): 50. 64 pebrianto eko wicaksono, “anjungan migas lepas pantai mangkrak bakal disulap jadi keramba ikan,” liputan 6, sep 9, 2019. https://www.liputan6.com/bisnis/read/4058589/anjungan-migaslepas-pantai-mangkrak-bakal-disulap-jadi-keramba-ikan. 65 gede suantika & handayanu, pemanfaatan anjungan minyak dan gas lepas pantai pascaproduksi, (2003), 33. 66 id., at, 47-49. 67 indonesia, peraturan pemerintah tentang bangunan dan instalasi di laut (2020), see art. 29(1)d. 68 indonesia, peraturan pemerintah tentang bangunan dan instalasi di laut (2020), see art. 33(1)f. 69 david j. doulman, “role of the port state in combating iuu fishing and promoting long-term sustainability in fisheries,” in fao/ffa regional workshop to promote the full and effective implementation of port state measures to combat iuu fishing nadi (fiji), 28 august-1 september 2006), 1. http://journal.unnes.ac.id/sju/index.php/jils https://www.liputan6.com/bisnis/read/4058589/anjungan-migas-lepas-pantai-mangkrak-bakal-disulap-jadi-keramba-ikan https://www.liputan6.com/bisnis/read/4058589/anjungan-migas-lepas-pantai-mangkrak-bakal-disulap-jadi-keramba-ikan 438 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils to answer the issue at hand, there has been a system to integrate ports and offshore terminals, namely port state measures (psm). psm attempts to establish a coordinated port control that will involve existing fishing vessels. psm will help coastal states to easier determine the measures taken.70 the proposed system will provide better surveillance and safety measurements that align with the psm to prevent iuu fishing activities occurring in eez, especially those around offshore installations. relevant cases several international cases can be a reference to learn more about security and defense interests in existing marine installations. among these cases are the us-iran oil platforms case and rainbow warrior case. i. us-iran oil platform case the oil platforms case is one of the series of military-related incidents in the persian gulf region in 1987 and 1988, at which time there was an armed conflict between iran and iraq. this incident began with the explosion of an oil tanker belonging to kuwait. the tanker was lent to the united states, an alliance from iraq, at the port of kuwait. the united states, assuming that iran was responsible for the attack, retaliated by blowing up two iranian oil installations, reshadat and resalat. the united states argued to the un security council that its actions constituted a form of self-defense and that it had notified the crew of the oil installation.71 afterward, a united states ship, samuel b roberts, was exploded by mines in international waters. this triggered the united states to attack more iranian oil installations, namely salman and nasr.72 70 judith swan, port state measures to combat iuu fishing: international and regional developments, sustain. dev. law policy (2010), 38. 71 william h. taft iv, self-defense and the oil platforms decision, 29 yale journal of international law (2004): 297. 72 andrew garwood-gowers, case concerning oil platforms (islamic republic of iran v united states of america): did the icj miss the boat on the law on the use of force?, 5 melbourne journal of international law (2004): 3. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 439 available online at http://journal.unnes.ac.id/sju/index.php/jils this case was brought by iran to the international court of justice. iran argued that the united states had violated article x (1) of the 1955 treaty of amity related to freedom of doing commercial activities. meanwhile, the united states of america defended its actions as selfdefense, in the united states of america also accused that the iranian platforms were utilized for military surveillance against american military forces.73 in regards to this claim, the court considered that the evidence of the existence of military activity within this installation is insufficient. even if some military activity had been conducted, the attack by the united states was not justified.74 this ruling sees that the two us attacks on iran's oil installations are not necessary and not proportional because the installation is not a legitimate military object and the size of the attack is larger than the initial offense.75 in addition to self-defense, the international court of justice also examined the definition of freedom of commerce. this review was carried out by conducting a distinction between existing commercial forms, namely commercial in general or commercial areas between iran and the united states. the international court of justice saw the commerce in this matter only existed in the regions of iran and was limited to those who exported oil directly in the regions of iran and the united states. the four oil installations attacked by the united states were not included in that category. the international court of justice adjudicated this case with the opinion that the actions of the united states did not interfere with commercial activities in the region.76 what is considered as self-defense is an action that has a balanced scale with previous attacks and is indeed considered necessary to conduct. however, in the case of these two international customs juxtaposed with article 51 of the un charter, which reads: 73 caroline e. foster, the oil platforms case and the use of force in international law, singapore 7 journal of international law (2003): 581. 74 caroline e. foster, the oil platforms case and the use of force in international law, singapore 7 journal of international law (2003): 583-584. 75 andrew garwood-gowers, case concerning oil platforms (islamic republic of iran v united states of america): did the icj miss the boat on the law on the use of force?, 5 melbourne journal of international law (2004): 3. 76 william h. taft iv, self-defense and the oil platforms decision, 29 yale journal of international law (2004): 295. http://journal.unnes.ac.id/sju/index.php/jils 440 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils "nothing in the present charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the united nations, until the security council has taken measures necessary to maintain international peace and security. measures taken by members in the exercise of this right of self-defence shall be immediately reported to the security council and shall not in any way affect the authority and responsibility of the security council under the present charter to take at any time such action as it deems necessary in order to maintain 77or restore international peace and security." the precedent of this case highlights that oil platforms may become targets in the case of the use of force by another state. moreover, a state may exercise its inherent right to take necessary measures to protect its territorial integrity and security. the surveillance system proposed does not have any offense capability but the benefit of intelligence data gathering. as the means to install the system is not to actively intervene with other states' sovereignty and only to secure both the installations as a part of its national infrastructures, the proposal may be justifiable under international law. ii. france-nz rainbow warrior case the second case that may become a reference to use offshore installations in the defense system is the bombing of greenpeace's ship by the french government agents at the port of waitematā, auckland, on july 10, 1985. this case was known as the rainbow warrior case. new zealand is an antinuclear nation and the ship was anchored nearby to protest at a series of nuclear tests conducted by france in the pacific ocean. in addition to the protest against the nuclear test, they also protested against 'kanaky merdeka' in new caledonia. previously, france had blown up 193 of the 210 total nuclear tests in the world. the location of the explosion was concentrated in the southern pacific ocean, precisely on the coral islands moruroa and fangataufa.78 77 united nations charter, art. 51. 78 david robie, the rainbow warrior, secrecy and state terrorism: a pacific journalism case study, pacific journal. rev. (2016), 192. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 441 available online at http://journal.unnes.ac.id/sju/index.php/jils in that incident, a dutch-portuguese photographer, fernando pereira, died. although france claimed not to have been involved in the incident, france gave several trade concessions and financial compensations post bombing to new zealand.79 two agents from direction générale de la sécurité extérieure (dgse), major alain mafart and captain dominique prieur were arrested and tried. they also confessed to the act on november 4, 1985 and were sentenced to 10 (ten) years in prison.80 however, they were released prematurely and resumed their former position afterward.81 the case was settled in an arbitration proceeding and it raises the question of whether the award truly reflected.82 the arbitration stated that: "unlawful action against non-material interests, such as acts affecting the honor, dignity or prestige of a state, entitle the victim state to receive adequate reparation, even if those acts have not resulted in a pecuniary or material loss for the 83claimant state." however, the focus of discourse in the arbitration tribunal is the state responsibility, distress and state of necessity principles contained in articles 31-33 of ilc. even though the perpetrators had been arrested, the position of the state was somewhat questionable. the bombing was undoubtedly a violation of international law.84 the incident was a portrayal of crime done by a state's governmental agency in another state's jurisdiction. furthermore, it raised a question on how the international legal system perceived these principles in the accident.85 furthermore, it opened more discussions on the matter of terrorism. though rainbow warrior case was 79 sarah bradley, “new zealand, france and new caledonia: changing relations and new caledonia’s road to independence,” (master’s thesis, victoria university of wellington, 2011), 28. 80 micaela frulli, on the existence of a customary rule granting functional immunity to state officials and its exceptions: back to square one, 26 duke journal of comp. & int. law (2016): 483. 81 j. scott davidson, the rainbow warrior arbitration concerning the treatment of the french agents mafart and prieur, int. comp. law q. (1991), 446. 82 id., at. 105. 83 unriaa, vol. xx (sales no. e/f.93.v.3) (1990) 215 and 267, para. 109 in regulating a revolution: small satellites and the law of outer space, neta palkovitz (kluwer law international, 2019). 84 geoffrey palmer, perspectives on international dispute settlement from a participant, victoria univ. wellingt. law rev. (2012), 59. 85 christopher harding, vingt ans apres: rainbow warrior, legal ordering, and legal complexity, 10 sing. yearbook of intl. law and cont. (2006): 100. http://journal.unnes.ac.id/sju/index.php/jils 442 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils conducted by a governmental agency, it evolved security studies regarding threats coming from non-state actors and state-backed terrorism.86 this incident may as well become lessons learned for new zealand and any other states in protecting waters under their jurisdiction. both of the cases above stress the importance of safety zone as part of the jurisdiction of the coastal state. though the effect safety zone imposes on freedom of navigation remains a controversy87, it is undeniable that past incidents show the need for coastal states to be granted rights similar to sovereign rights within the eez. as long as the setting of these safety zones are compliant with imo recommendations and other generally accepted international standards, in which the coastal states must pay attention to the safety of navigation and the installation itself88, coastal states should be given the right to determine safety zones. oil and gas installations are among the most important assets in the sea, whether they are state-owned or private establishments. the need to integrate defense and security mechanism owned by the state and private sector, as well as determining safety zones surrounding them, are deemed necessary. the idea proposed by the authors of this paper may fulfill the needs to do so. conclusion a modern problem always requires a modern solution. indonesia, to face defense issues in the sea, cannot rely on traditional ways only. the opportunities brought by the increasing activity of oil and gas exploration should be welcomed when deemed necessary to enhance indonesia's maritime defense system. implementing a surveillance system in offshore oil and gas installations will not only benefit the state logistically but the private sectors and international maritime traffic safety in general. having a clear and solid legal basis both national and international, this initiative can be applied in abandoned installations, which will be reused for other 86 david robie, the insecurity legacy of the rainbow warrior affair: a human rights transition from nuclear to climate-change refugees, 1 journal of interdisciplinary (2017): 35. 87 sebastian tho pesch, coastal state jurisdiction around installations: safety zones in the law of the sea, int. j. mar. coast. law (2015), 513. 88 roberto virzo, coastal state competences regarding safety of maritime navigation: recent trends, ssrn electron. j. (2016), 36. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 5(2) 2020 443 available online at http://journal.unnes.ac.id/sju/index.php/jils beneficial purposes. nevertheless, this potential initiative should pay attention to rights and the sovereignty of other states and the technicality of the safety of the installations. references afriansyah, a. (2016). indonesia’s practice in combatting illegal fishing. asian yearbook of international law, 22, 283–300. https://doi.org/10.1163/9789004379633_015. afriansyah, a. (2019). claiming fish in the disputed exclusive economic zone: indonesian practice. asia-pacific journal of ocean law and policy, 4(2), 291–297. https://doi.org/10.1163/24519391-00402015. afriansyah, a., paruna, d. & andiani, r. (2020). (un)blurred concept of sovereign rights at sea: implementation context. law reform, 16(1). 133-143. https://doi.org/10.14710/lr.v16i1.30310. agastia, i. g. b. d. & perwita, a.a.b. 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(2019, september 9). anjungan migas lepas pantai mangkrak bakal disulap jadi keramba ikan. liputan6.com, https://www.liputan6.com/bisnis/read/4058589/anjungan-migaslepas-pantai-mangkrak-bakal-disulap-jadi-keramba-ikan http://journal.unnes.ac.id/sju/index.php/jils https://www.liputan6.com/bisnis/read/4058589/anjungan-migas-lepas-pantai-mangkrak-bakal-disulap-jadi-keramba-ikan https://www.liputan6.com/bisnis/read/4058589/anjungan-migas-lepas-pantai-mangkrak-bakal-disulap-jadi-keramba-ikan 448 jils (journal of indonesian legal studies) volume 5(2) 2020 available online at http://journal.unnes.ac.id/sju/index.php/jils quote it is time to get rid of the harmful and dangerous practice of offshore drilling once and for all. jeff van drew about authors arie afriansyah, s.h., m.i.l., ph.d. is a lecturer at the faculty of law universitas indonesia. besides teaching duties, currently, he is also the chairman of djokosoetono research center faculty of law universitas indonesia; the editor in chief of indonesia law review (www.ilrev.ui.ac.id), and the senior associate editor for indonesian journal of international law (www.ijil.ui.ac.id). salsabila siliwangi surtiwa is a research intern at the center for international law studies. she previously served as a legal fellow at justice without borders and was involved in the conference of indonesian diaspora youth 2018 as a member of the drafting committee. she also took up the role of deputy head of the journalism bureau at lembaga kajian keilmuan (lk2) fhui in 2018, after formerly serving as a staff in the previous year. her research interests include public international law, adat law, as well as law, society and development. http://journal.unnes.ac.id/sju/index.php/jils https://www.researchgate.net/deref/http%3a%2f%2fwww.ilrev.ui.ac.id https://www.researchgate.net/deref/http%3a%2f%2fwww.ijil.ui.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: 7fbf2394fd7b20fd • 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: 7fbf23949c93206d • 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? 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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: 7fbf23956f5ea637 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare 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 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. (new delhi: global research forum on diaspora and transnasionalism, 2012). http://journal.unnes.ac.id/sju/index.php/jils 150 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils anif, virdatul. “arah politik hukum kebijakan perlindungan ham di indonesia”. lex scientia law review 1, no. 1 (2017): 5-18. https://doi.org/10.15294/lesrev.v1i01.19453. arifin, ridwan. “revealing the other side of human rights issue: how we look to the existed various problems”. jils (journal of indonesian legal studies) 2, no. 1 (2017): 79-82. https://doi.org/10.15294/jils.v2i01.16642. artharini, isyana. “problematika di balik kewarganegaraan ganda.” bbc.com, 2016. online at <https://www.bbc.com/indonesia/berita_indonesia/2016/08/1608 17_indonesia_kewarganegaraan_ganda> asshiddiqie, jimly. pengantar ilmu hukum tata negara jilid ii. 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(jakarta: sekretariat negara, 1949). republic of indonesia. indonesian 1945 constitution (undang-undang dasar negara republik indonesia tahun 1945). available online at < https://www.dpr.go.id/jdih/uu1945> republic of indonesia. undang-undang nomor 12 tahun 2006 tentang kewarganegaraan. lembaran negara republik indonesia tahun 2006 nomor 63, tambahan lembaran negara republik indonesia nomor 4634 [law no. 12 of 2006 concerning citizenship]. (jakarta: sekretariat negara, 2006). republic of indonesia. undang-undang republik indonesia nomor 3 tahun 1946 tentang warga negara dan penduduk negara [law no. 3 of 1946 concerning citizens and residents of the state]. (jakarta: sekretariat negara, 1946). republic of indonesia. undang-undang republik indonesia nomor 62 tahun 1958 tentang kewarga-negaraan republik indonesia [law no. 62 of 1958 concerning citizenship of the republic of indonesia. (jakarta: sekretariat negara, 1958). republic of indonesia. undang-undang republik indonesia serikat nomor 7 tahun 1950 tentang perubahan konstitusi sementara republik indonesia serikat menjadi undang-undang dasar sementara republik indonesia. (jakarta: sekretariat negara, 1950). available online at < https://www.dpr.go.id/dokjdih/document/uu/1657.pdf> sawano, masachika. “dual citizenship japan", dual citizenship report. online at < https://www.dualcitizenshipreport.org/dualcitizenship/japan/> setiaji, mukhamad luthfan, and aminullah ibrahim. “kajian hak asasi manusia dalam negara the rule of law: antara hukum http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 153 available online at http://journal.unnes.ac.id/sju/index.php/jils progresif dan hukum positif”. lex scientia law review 2, no. 2 (2018): 123-138. https://doi.org/10.15294/lesrev.v2i2.27580. sudibyo, triono wahyu. “jalan panjang mengupayakan dwi kewarganegaraan indonesia.” detik.com, 2015. online at < https://news.detik.com/berita/d-2921957/jalan-panjangmengupayakan-dwi-kewarganegaraan-indonesia> taufiqurrohman, taufiqurrohman. “polemik kewarganegaraan gloria natapradja, ibunda mengaku lalai.” liputan6.com, 2016. online at < https://www.liputan6.com/news/read/2601734/polemikkewarganegaraan-gloria-natapradja-ibunda-mengaku-lalai> the united nations. convention on the elimination of all forms of discrimination against women. (geneva: united nations, 1979). unhcr. the 1954 convention relating to the status of stateless persons (geneva: unhcr, 1954). winarno, winarno. kewarganegaraan indonesia dari sosiologis menuju yuridis. (bandung: alfabeta, 2009). wulandari, emmy. “perolehan kembali status kewarganegaraan yang hilang berdasarkan undang-undang kewarganegaraan.” yuridika 29, no. 3 (2014): 299–309. https://doi.org/10.20473/ydk.v29i3.37. wulansari, eka martiana. "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 57 available online at http://journal.unnes.ac.id/sju/index.php/jils research article the position of indegenous people in the culture and tourism developments: comparing indonesia and east timor tourism laws and policies dewa gede sudika mangku1 , ni putu rai yuliartini2 ruslan ruslan3 , seguito menteiro4, dahlan surat5 1,2 faculty of law and social sciences, univeritas pendidikan ganesha, singaraja, bali, indonesia 3 universitas syiah kuala, banda aceh, indonesia 4 faculty of law, universidade dili, dili, timor leste 5 universiti kebangsaan malaysia, selangor, malaysia  sudika.mangku@undiksha.ac.id submitted: dec 12, 2021 revised: march 11, 2022 accepted: may 30, 2022 abstract the expansion of development brings many impacts, including in the discourse of indigenous peoples in the midst of tourism development. on the one hand, culture and indigenous peoples are the main pillars in the use of culture-based tourism such as in bali, indonesia, but on the other hand, tourism development raises questions about legal 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/0000-0001-9433-827x https://orcid.org/0000-0003-2688-1267 https://orcid.org/0000-0001-8760-7371 58 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils protection for indigenous peoples. this study aims to analyze and compare various laws and policies in tourism development in bali (indonesia) and atauro (timor leste) and the position of indigenous peoples in the midst of various tourism policies. by comparing several related policies, this research found and confirmed that existing cultural arrangements were limited to the cultural identity of indigenous peoples and as a tourist attraction for indonesia, but there are no regulations that give a definition of culture as an economic resource. in timor leste, ecotourism management in beloi village is still far from the plan. the government as policy makers and facilitators impressed walk alone in terms of management tourist. keywords: legal protection; tourism management; indegenous people; culture; law and policy http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 59 available online at http://journal.unnes.ac.id/sju/index.php/jils table of contents abstract ………………………………………………………. 57 table of contents ……………………………..….………. 59 introduction ………………………………….……………. 60 historical background …………..…………………… 65 the condition on cultural & economic activities in bali …………………………………………… 69 the condition on cultural & economic activities in beloi village, atauro island, timor-leste …………………………………………………… 74 legal provisions relating to the cultural protection of the indigenous peoples of bali .. 76 authority of the provincial government of bali in the development of cultural-based tourism villages in bali province …………………. 82 authority of the ecotourism management in belo village, atauro island, timor-leste ………. 91 conclusion ………………………………………….…..…… 94 references ………………………………………………….… 95 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: mangku, dewa gede sudika, ni putu rai yuliartini, ruslan ruslan, seguito monteiro, and dahlan surat. “the position of indegenous people in the culture and tourism developments: comparing indonesia and east timor tourism laws and policies”. jils (journal of indonesian legal studies) 7, no. 1 (2022): 57-100. https://doi.org/10.15294/jils.v7i1.52407. http://journal.unnes.ac.id/sju/index.php/jils 60 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils introduction tourism is an etymological sanskrit word, meaning "pariwisata" in indonesian and derived from dutch or english "tourism". synonyms of the word tourism are the same as "tour". this thought is based on the tourism world which is consists of two syllables namely the word "pari" and the word "wisata". beheading the word pari itself has the understanding of circling, while tourism has the meaning of doing a trip.1 so the word tourism means an activity related to travel to surround or go to one place to another. tourism is a trend of center for the indonesian economy that can support state revenues in a matter of fast or instant and is considered very efficient. the global market has made countries in the world race to make tourist products to offer to tourists. competition in tourism promotion and being able to survive in global market competition must be accompanied by adequate public services.2 for indonesia, the importance of tourism had been strongly stated in the outlines of state policy 1998, it is stated that, “tourism development is directed at the development of tourism as a major and superior sector in a broad sense is capable of being one foreign exchange earner, stimulate of the economic growth, increase the local revenue, empower the community's economy, expanding of the employment and business opportunities, and improve recognition and marketing of national products in order improve the welfare of the people by constantly maintaining the national identity, religious values as well as the 1 i. gusti ayu ketut giantari, ida bagus ketut surya, ni nyoman kerti yasa, ida bagus anom yasa, development and revitalization strategies for traditional markets in bali, 45 international journal of social economics 1058-1070 (2018). 2 michel picard, bali: pariwisata budaya dan budaya pariwisata (jakarta, kepustakaan populer gremaedia, 2006). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 61 available online at http://journal.unnes.ac.id/sju/index.php/jils preservation of function and quality of the environment”3. it is clearly dictated that tourism is developed to become a main sector in the national economic development; while at the same time maintains the national identity and environmental sustainability. tourism has become a priority sector in the economic development of indonesia. it is more emphasized by the statement of the president of the republic of indonesia, joko widodo since 2015 that boosted tourism as a source of foreign exchange through some policies, such as increased promotion in foreign policy and add to the visafree for some countries. the current trend of world tourism is the development of special interest tourism where special interest tourism leads more to the utilization of local resources. cultural and landscape differences in every country in the world are invaluable wealth and become the main potential of tourism4. the tourists are more visiting tourist attractions based on nature and culture; this is due to the saturation of the tourism frenzy such as tourism that develops in south bali.5 bali province in indonesia is a small island with an area of 5,632.86 km. not only “south island” and “beach”, but also it attracts tourists all over the world with the impression of “rich nature”, “the island where many kinds of gods live”, and “the island of culture and art”. indonesia is the largest muslim country globally, with muslims accounting for 88.1% of the total population. on the other hand, in bali, more than 90% of the island's total population is hindu, and they are called balinese hindus. furthermore, balinese hinduism is a particular case of inheriting the original hindu culture, although it is 3 veronica h long & sara l kindon, gender and tourism development in balinese villages, in gender, work and tourism 99–128 (2005). 4 mark p hampton, heritage, local communities and economic development, 32 ann. tour. res. 735–759 (2005). 5 stroma cole, a political ecology of water equity and tourism: a case study from bali, 39 ann. tour. res. 1221–1241 (2012). http://journal.unnes.ac.id/sju/index.php/jils 62 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils called soft hinduism because of its milder discipline, unlike indian hinduism6. the island of bali has the power to be developed sustainably in the field of tourism. the potential of tourism has been recognized by the world with the value of customs, traditions, hinduism, and balinese culture has fused into a potential to be developed into a strength, ability, capability and competitiveness. hinduism in bali has a unique religious ceremony, customs, and traditions in each of the traditional villages, livelihoods, and arts of balinese people that can not be found in any part of the world. this potential can be developed as a tourist attraction. the arrival of tourists to bali will strengthen the bonds of the balinese against their cultural traditions by revitalizing values of culture and traditions that live in the local communities7. tourism in bali began in the 1920s during the dutch colonial era. after indonesia got independent as a nation, president suharto's in 1972 made tourism development a top priority for economic growth in bali. the story of the tourism industry in bali had led to relieving extreme poverty for the most impoverished region in indonesia. as the number of foreign tourists increased, the tourists, mainly westerners, had deep interests in balinese natural unique resources and traditional culture, rather than the indonesian government’s closed rich resort. western tourists had moved to more attractive targets, private beach and luxury hotel enclosed had become the destination for tourists having some limited purpose8. 6 i ketut budarma & ketut suarta, the role of local value in global sustainable tourism development paradigm. the case of tourism in bali, 2 j. bus. hosp. tour. 218–233 (2017). 7 i gede mudana, ni made ernawati & mihai voda, analysis of the evolving cultural tourism implementation in bali indonesia, 7 multicult. educ. 608-619 (2021). 8 robert shepherd, commodification, culture and tourism, 2 tour. stud. 183–201 (2002). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 63 available online at http://journal.unnes.ac.id/sju/index.php/jils many foreign tourists like western had admired cultural and ethnic tourism. tourism in bali is currently being expanded on two different axes, selling ethnic culture and beach life. ethnic tourism involves the first experience and the meet of another culture to provide tourists with a more “intimate” and “authentic” experience. according to ethnic tourism defines as “travel motivated by the tourist's desire for direct, genuine and intimate contact with people of different ethnic and cultural backgrounds from the tourist”. and the purchase of souvenirs is an opportunity to experience different cultures, and through this act, tourists can form a space for crosscultural and social negotiation9. the change in tourist orientation has encouraged tourism policies pursued by the government to develop natural and cultural tourism attractions. economic resources are an important factor related to goods and services. economic resources consist of human factors, such as labor and management, while non-human factors consist of land, capital, financial resources, technology, including culture. as is known, bali shows how culture is an important asset in the implementation of tourism services business. it cannot be denied that this cultural attraction has made bali a reputable tourist destination. culture is not only a source of tourism economy, but also as the root of national identity. thus, the destruction of culture as a tourism economic resource will further destroy the identity of a nation.10 thus, culture is very important for the implementation of tourism in bali. the culture in bali is closely related to the existence of indigenous peoples, they always create a very diverse culture and will 9 i wayan geriya, the impact of tourism in three tourist villages in bali, globalization in southeast asia: local, national, and transnational perspectives. (2003). 10 id. http://journal.unnes.ac.id/sju/index.php/jils 64 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils never get bored to enjoy. this culture is also combined with the natural beauty of bali which adds to the attraction of outsiders to visit.11 tourism is a very important industrial sector in the life of the nation and state therefore tourism should be considered because this is very important to determine the direction and future of tourism for the community. therefore, researchers are very interested to see bali tourism development policy. because bali has a strong culture and the hospitality of the balinese people.12 bali has amazing cultured society and beautiful nature, which is the unique culture and beautiful natural panorama has always been a charm and attraction for tourists. bali is famous as one of the world's tourism destinations, no wonder this island becomes a place for foreign tourists to travel so that its role in the tourism industry does not need to be contested anymore.13 tourism is the leading sector that has the main focus in development, therefore tourism must have a clear development policy. even in some areas show that the tourism industry is able to boost the area from developmental delay to a major source of income. bali province basically has a lot of tourism potential that can be developed as a creative tourist attraction. the impact of tourism development on traditional culture has positive and negative aspects, but it is the negative aspect that is serious for sustainable development. there are severe warnings about the negative aspects. the issue arises whether the bali provincial tourism development policy can increase people's economic income in the long term while 11 desak putu dewi kasih et al., the exploitation of indigenous communities by commercial actors: traditional knowledge and traditional cultural expression., 8 j. ethn. cult. stud. 91–109 (2021). 12 alexandra law et al., transitioning to a green economy: the case of tourism in bali, indonesia, 111 j. clean. prod. 295–305 (2016). 13 adi laksana and ida bagus, pedoman dalam pengembangan desa wisata di provinsi bali (denpasar, dinas pariwisata provinsi bali, 2017). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 65 available online at http://journal.unnes.ac.id/sju/index.php/jils maintaining the preservation of nature and the environment and culture of the local community.14 meanwhile, in east timor, ecotourism management in beloi village is currently still dominated by the government and the private sector. the lack of involvement of local communities causes local communities to be unable to directly benefit in the event that this is an economic benefit. the government prioritizes development programs that are prioritized in the fields of health, education, agriculture and infrastructure. currently timor-leste relies on the oil and gas sector as the main source of income, but in the 2030 planning, it has listed tourism as the main source of divisa for the country. tourism can be expected to be a determining and balancing factor in managing or developing the development of other sectors gradually. many countries today have paid special attention to the tourism industry. development program. this tourism has resulted in more intense competition in the tourism industry, so it is very important to plan tourism to compete with other countries. historical background bali as one of the most popular destinations in indonesia can be said to be the leading economic sector of bali, which is directly or indirectly the majority of balinese people.15 put their lives in the tourism industry. bali is also a cultural heritage of the archipelago that continues to be guarded. one of the interesting global phenomenon today is the growing tourism becomes one of the main pillars of the 14 cole, supra note 5. 15 joseph wasonga, national heritages, global capital accumulation and collective socioeconomic impact: a critique of tourism industry in kenya, 8 j. tour. challenges trends 55–77 (2015). http://journal.unnes.ac.id/sju/index.php/jils 66 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils world economy. the development of global tourism, among others, is driven by advances in communications, information technology and transpotation. on the other hand, the development of global tourism is influenced by the 4t revolution: transportation, telecommunication, trade, and tourism. in addition, the most important thing is the increasing welfare of the community, so that tourism becomes one part of lifestyle, become one of the basic needs in addition to food and clothing16. however, in reality, balinese culture is managed and organized independently by the community, but the benefits of tourism services business tend to be enjoyed only by the government and tourism service entrepreneurs. here it is seen that there is no good reciprocity, this is because there is no clear economic relationship between the government, businessmen and indigenous peoples in bali17. thus, it can be identified that on the one hand culture is used as a tourism economic resource, but on the other hand, culture has not been defined as the economic resource of tourism. thus, it results in a culture in an unclear position. this happens because there is no regulation that provides the definition, recognition, and protection of culture as an economic resource for tourism. for example, law no. 10 of 2009 on tourism (hereinafter referred to as the tourism law) does not explicitly recognize and protect culture as a tourism economic resource. the term "culture" is only contained in article 1 paragraph (5) of the tourism law within the framework of the definition of tourist 16 i wayan budiasa & igaa ambarawati, community based agro-tourism as an innovative integrated farming system development model towards sustainable agriculture and tourism in bali, 20 j. int. soc. southeast asian agric. sci. 29–40 (2014). 17 world tourism organization, international tourism: a global perspective (1997). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 67 available online at http://journal.unnes.ac.id/sju/index.php/jils attractions.18 likewise, article 1 paragraph (2) of bali provincial regulation no. 2 of 2012 on bali cultural tourism (perda on balinese cultural tourism) which only emphasizes the definition of culture to the elements of the formation of a culture but does not show that the existence of culture is one of the tourism economic resources.19 based on the forest, it has once again been shown that no one provides the definition, recognition and protection of culture as a source of tourism economy. in other words, there are governing legal norms recognizing and protecting the culture of the community complete with culture in bali as a tourism economic resource. this treatment has resulted in the destruction of various markers of balinese cultural identity which in fact is another fundamental pillar of balinese culture. the concept of sustainable tourism has brought greater awareness towards maintaining the economic and social advantages of tourism development whilst ensuing the industry is socially, culturally, and environmentally sustainable. a central objective within sustainable tourism industry is to empower local indigenous people’s ability to harness the economic advantages of tourism whilst maintaining their natural heritage, environment, and biodiversity. sustainable tourism also advocates respecting the socio-cultural authenticity of host communities, which together along with stakeholder will ensure viable, long-term economic operations resulting in socio-economic benefits to all parties. despite an underlying philosophy of enhancing indigenous advancement through sustainable tourism, there still remains significant social and 18 cole, supra note 5. 19 dyah permata budi asri, legal protection of culture through unesco world heritage centre, 25 j. huk. ius quia iustum 256–276 (2018). http://journal.unnes.ac.id/sju/index.php/jils 68 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils legal impediments which restrict indigenous people from fully engaging in the sustainable tourism industry20. environmental and cultural protection are critical for survival of indigenous peoples, since their traditional way of living is likely to have a closer relationship with surrounding environment and a higher dependency on nature. indigenous people also have historical cultural knowledge about their community structures, beliefs and surrounding environment. sustainable tourism, unlike other resource intensive industries, has the potential to achieve development in communities in a suitable manner if managed properly. while indigenous people have participated in the tourism industry, the expansion of economic activities associated with tourism has sometimes resulted in economic leakage from the region, or an unfair distribution of wealth21. compounding the unequal distribution of 20 law et al., supra note 12. 21 s sarath mathilal de silva, linking human rights and the environment, daily news, retrieved from < https://www.dailynews.lk/2016/06/20/features/85126> (2016). in a further context, development implies a decrease in the quality of the environment, even though access to a healthy environment is one of the important things that is part of human rights. see berliana arthanti and nabilla eka pramudhita, law and human rights in addressing labor problems during the pandemic to achieve sustainable development goals, 4 lex scientia law review 39-54 (2020); 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). in fact, access to the environment, including how indigenous peoples are protected from the various impacts of tourism development, is a form of social justice. see also winda indah wardani, how can the law protect the forest?, 2 journal of law and legal reform 527538 (2021); ridwan arifin, human rights aspect on natural resources issue in indonesia, 1 law research review quarterly 160-174 (2015); 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). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 69 available online at http://journal.unnes.ac.id/sju/index.php/jils wealth, there is also conflicting beliefs about collective models of land ownership versus the individual nature of the tourism industry. in organizing tourism in bali province, the role of law can not be ignored. in this case, the law as a means of social control, as stated by roucek, soerjono soekanto, named the mechanism of social control “everything that is done to carry out planned and unplanned processes to educate, invite, or even compel the local community to adapt with the customs and values of people’s lives22. the condition on cultural & economic activities in bali reflection and legal construction and the context of balinese cultural values in relation to balinese cultural tourism between “blessings” and “disasters” that appear in the dynamics and phenomenon of balinese life. many blessings of bali tourism cases that end also brings “disastrous”. thus tourism is an integral part of national development that is carried out systematically, planned, integrated, sustainable, and responsible while providing protection for religious values, culture that lives in society, environmental sustainability and quality, and national interest23. the importance of 22 i wayan geriya, pariwisata dan dinamika kebudayaan lokal, nasional, global: bunga rampai antropologi pariwisata (1995). 23 diane elson, gender justice, human rights, and neo-liberal economic policies, gend. justice, dev. rights 78–114 (2002). in several cases and conditions, especially in indonesia, the conflict between national interests (investment and economic improvement) and environmental sustainability is often one of the obstacles. on the one hand, the development carried out, including tourism development, cannot be denied a direct impact not only on the sustainability of culture and indigenous peoples which may be threatened, but also on environmental sustainability. see ign parikesit widiatedja, towards liberalization of services in asean: challenges and opportunities of asean framework agreement on services http://journal.unnes.ac.id/sju/index.php/jils 70 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils tourism development, that the development of tourism is needed to encourage equality of business opportunity and benefit and able to face the challenges of changing local, national and global life. in addition to cultural protection, related to the formation of tourist villages in support of the culture, there are no regulations governing it, this will also have implications for the development of tourist villages as a support for culture itself. this is because, a tourist village is a model of tourism development based on rural potential with all its attractions and uniqueness developed as a tourist attraction to attract tourists. referring to the purpose of tourism implementation contained in article 4 of the tourism law, the development of tourist villages is believed to be able to increase economic growth, preserve nature, environment, and resources, and promote balinese culture by developing economic activities in rural based tourism activities.24 the balinese population has adjusted quickly to the global demand for digital and it-friendly skills brought to the fore by the boom in tourism. this includes access to the internet and its usage for booking accommodation and travel, on-line orders of food and for financial and insurance services, as well as taking advantage of online travel services, etc. among associated negative effects of tourism, (afas) on tourism, 10 indonesian journal of international law (2012); fenny budi and rahayu subekti, aspek hukum pemanfaatan hutan lindung untuk tempat wisata, 7 jurnal komunikasi hukum (jkh) 540-549 (2021). 24 kasih et al., supra note 11. furthermore, it is even emphasized on the protection of socio-cultural aspects in tourism development, which is not only oriented towards economic improvement but also cultural and natural preservation. see also a.a. istri eka krisna yanti, community based tourism dalam menyongsong new normal desa wisata bali. 7 jurnal komunikasi hukum (jkh) 72-86 (2021); prasetyo hadi purwandoko, adi sulistiyono, and m. hawin, the implementation of the traditional cultural expression (tce) protection in indonesia based on article 38 law number 28 of 2014 regarding copyright, 18 indonesian journal of international law (2021). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 71 available online at http://journal.unnes.ac.id/sju/index.php/jils environmental degradation, is highlighted by increasing water scarcity, but also extends to degradation of heavily used tourist locations such as coastal and marine environments. for example, excessive water use in tourist facilities has been blamed for falling levels of ground water and reduced water availability for local consumers. though rigorous analysis of these issues is sparse, anecdotal evidence suggests that rapid growth in tourism is likely to be placing considerable pressure on the natural resource base and environmental assets25. such problems include negative externalities are not associated only with growth of tourism; economic growth through industrialisation has historically been associated with high levels of environmental degradation. the challenge is to formulate and effectively enforce an appropriate regulatory regime that can conserve natural resources such as water and other environmental assets while enabling bali to benefit from the growth of the tourist industry. this is an issue that requires urgent policy attention particularly because the sustainability of the tourist industry itself is critically dependant on bali’s natural beauty and pristine environment26. while some of these negative influences on the environment have received attention, it is also important to recognize some of the positive external effects of tourism. in various laws and regulations in indonesia, the term "tourist village" is stated, but there is no single legislation that defines or establishes the norms for the establishment of a tourist village. the hierarchical arrangement of tourist villages can be found in article 29 paragraph (3) letter b of government regulation no. 50 of 2011 on the national tourism development master plan 2010-2025 stipulates that 25 dik roth, environmental sustainability and legal plurality in irrigation: the balinese subak, 11 curr. opin. environ. sustain. 1–9 (2014). 26 budarma and suarta, supra note 6. http://journal.unnes.ac.id/sju/index.php/jils 72 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils the strategy of increasing the potential and capacity of regional resources through the development of productive businesses in the tourism sector is one of them by developing the potential of local resources through tourist villages.27 the law as a means of control as used by satjipto rahardjo is the law in relation to social change that a process influences people to behave in accordance with the expectations of society. as described above in the history of the birth of tourism in bali, controlling by law is exercised in various ways and through customary village bodies and individuals and legal entities. in the context of tourism law, every person and/or society within and around a tourism destination has priority rights: become a worker; consignment; and/or management28. the existence of tourism village is also contained in bali provincial regulation no. 10 of 2015 on the master plan for tourism development of bali province 2015-2029 (hereinafter referred to as regulation no.10 of 2015) which in article 10 paragraph (1) stipulates that the development of tourist villages involving community participation is one of the destinations of bali tourism development. in the provisions of article 10 (2) it is mentioned that the indicator of bali tourism development targets listed in paragraph (1) of regulation no.10 of 2015 is listed in annex i29. however, annex i of regulation no.10 of 2015 does not include indicators of the development of tourist villages. this of course becomes the norm of vacuum in an effort to maximize the 27 adi laksana & ida bagus, pedoman dalam pengembangan desa wisata di provinsi bali (2017). 28 i gusti ayu ketut giantari et al., development and revitalization strategies for traditional markets in bali, int. j. soc. econ. (2018). 29 anak agung istri atu dewi et al., strengthening the economy of desa adat based on local resources: strategy and regulation context, 24 j. leg. ethical regul. issues 1–9 (2021). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 73 available online at http://journal.unnes.ac.id/sju/index.php/jils development of tourist villages. the absence of norms in the formation of tourist villages that has implications for the difficulty of developing cultural-based tourist villages, especially during the covid-19 pandemic as it is today, the development of cultural-based tourist villages that are expected to improve the welfare of people who have been down in the midst of the covid-19 pandemic.30 balinese indigenous culture is an economic resource for tourism. unfortunately, the people of bali are relatively unable to enjoy these economic benefits. the government and tourism service entrepreneurs are stakeholders who have tended to benefit the most. this situation certainly requires tracing and research into legal instruments that regulate culture, society, and tourism31. in addition, it is also necessary to analyze the issue of whether the relevant national laws and regulations have regulated and protected the culture of indigenous peoples as one of the economic resources of tourism.32 the local traditions of indigenous villages in bali have the potential to be excavated to explore bali’s tourism culture. hinduism and local law (awig-awig and pararem) can serve as an update tool in regulating tourist villages in cultural tourism activities, in addition to state law. the philosophy of tri hita karana as a guide to format cultural tourism as a control to provide legal certainty, nobility and tourism culture of bali. indigenous villages have the right to manage a community based tourist village of balinese customary law33. the 30 muchsin muchsin, perlindungan dan kepastian hukum bagi investor di indonesia, thesis (surakarta, universitas sebelas maret, 2003). 31 gede sugiartha, putu budiartha & minggu widyantara, environmental management regulation for sustainable tourism development in bali, 24 j. leg. ethical regul. issues 1–11 (2021). 32 i wayan budiasa & igaa ambarawati, community based agro-tourism as an innovative integrated farming system development model towards sustainable agriculture and tourism in bali, 20 journal of the international society for southeast asian agricultural sciences 29–40 (2014). 33 gérard francillon, bali: tourism, culture, environment (1979). http://journal.unnes.ac.id/sju/index.php/jils 74 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils management rights may be further regulated in the local indigenous village law. this research is a normative legal study that primarily analyzes primary legal materials in the form of laws and regulations. the results showed that existing cultural arrangements were limited to the cultural identity of indigenous peoples and as a tourist attraction for indonesia, but there are no regulations that give a definition of culture as an economic resource. this situation proves that there are empty norms of cultural regulation that have not been recognized and protected by culture as one of the economic resources of tourism.34 law no. 10 of 2009 on tourism that does not explicitly recognize and protect culture as a tourism economic resource. this situation certainly requires the dissemination and research of legal instruments that regulate culture, society, and tourism. this article recommends to the government to revise the current laws and regulations or establish new laws and regulations in response to these issues. the condition on cultural & economic activities in beloi village, atauro island, timorleste timor-leste is a newly independent country and was recognized by the united nations (un) on may 20, 2002, after being recognized as a state of the democratic republic of timor-leste and its government was immediately underway, a development program was immediately planned. georgafis timor-leste, atauro island, 34 wasonga, supra note 15. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 75 available online at http://journal.unnes.ac.id/sju/index.php/jils which is located on the coast of the wetar strait or to the north of the capital city of dili, is a district (posto administrativo) located in the territory of the regency (camara municipio) of dili. this orro island has the potential for a very beautiful tourist attraction. one of the areas that has a fairly potential ecotourism potential in timor-leste is atauro island in general and in beloi village in particular. this orro island has five villages and has different tourism potentials in each village. the villages are as follows: maquili village, vila village, beloi village, biqueli village and macadade village. geographically, beloi village is the largest village, and it is located along the east and west coasts of atauro island. beloi village has a good tourist area, for example looting caves in the post-second world war era, old buildings left by the portuguese colonization and rocks along the coast, marine parks and various types of colorful fish. the ecotourism found in beloi village is very beautiful and must be well laid out. because the development of tourism in an area will bring a value that has a positive and negative influence on the surrounding population both economically, socially, and culturally. therefore, this study aims to obtain an ecotourism management model that is considered (assumption) better than the previous management model in beloi village, east timor. ecotourism is the cheapest type of tourism because it only sells services to tourists. but it must be managed properly. marine ecotourism in beloi village is currently running but management is not optimal, so there is a need for a better management model than before. http://journal.unnes.ac.id/sju/index.php/jils 76 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils legal provisions relating to the cultural protection of the indigenous peoples of bali the existence of tourism in bali as the main sector of the regional economy because the island of bali has a dazzling natural beauty, friendly society, and diversity of traditions, which causes tourism activities in bali to continue to exist from time to time. the beauty of nature and all these uniqueness coupled with religious strength and combined with culture so that it is united is very strong in the side of people's lives.35 in the context of this public policy, the role of executive and legislative "state" in producing regulations and legislation in tourism primarily provides protection for religious values, living culture in society, sustainability and environmental quality, and national interests36. regional autonomy is the authority, rights, and obligations related to the task to regulate its autonomous region implemented by the autonomous regional government. based on this understanding it is seen that the central government gives the right to regulate and take care of the interests of the regional household. this right and authority is expected by local governments to be able to utilize their natural resources well and improve the quality of existing human resources. the existence of the 1945 constitution of the republic of indonesia is reflected in the formation of the indonesian state based on legal unity and not on power alone. thus, making the constitution the basis for an absolute government system, including in the 35 michel picard, bali: pariwisata budaya dan budaya pariwisata (2006). 36 charles victor barber, the state, the environment, and development: the genesis and transformation of social forestry policy in new order indonesia ( berkeley, university of california, 1989). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 77 available online at http://journal.unnes.ac.id/sju/index.php/jils relationship between the division of authority in government, especially related to tourism37. on this basis, the regional government is handed over affairs by the central government that are included with the authority owned by the local government in accordance with the laws and regulations. authority is a power that lies in the maintenance of rights and obligations in carrying out a group. the local government as intended in law no. 23 of 2014 in article 1 number (2) is to exercise the widest autonomy.38 therefore, in its implementation, it is necessary to increase competitiveness by taking into account human factors and natural resources, technological advances, and institutions which are expected to make each region at the same level of quality39. for this role, bringing bali to adulthood is now one of the areas with the largest tourism visits in indonesia. the increase in the number of tourists who come can be inspired as a good impact, especially on the economic aspects of society. tourism based on society is an important economic activity that when managed appropriately can have a good impact on the development order, poverty reduction, community harmony, local economic development, natural resource management, and sustainable environment.40 the economic aspect that can be utilized by the community is the rapid development of tourism means coupled with 37 michael j rouse, institutional governance and regulation of water services (2013). 38 i nyoman yatna dwipayana genta and i made sarjana, pengaturan kearifan lokal dalam peraturan daerah provinsi bali nomor 2 tahun 2012 tentang kepariwisataan budaya bali, 4 kertha negara: journal ilmu hukum 1-5 (2016). 39 picard, supra note 36. 40 mark poffenberger & mary s zurbuchen, the economics of village bali: three perspectives, 29 econ. dev. cult. change 91–133 (1980). http://journal.unnes.ac.id/sju/index.php/jils 78 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils the formation of new tourism accommodation such as hotels, villas, travel, and others that can open jobs for the surrounding community. on the other hand, the development of the tourism industry must put forward the principle of environmental sustainability, so that in its management can be felt in a lower way. the division of affairs between the local government and central government, is a form of division of concurrent government affairs. so in connection with the division of power of concurrent government affairs where regional officials has their authority to take care of all the needs and needs of the regional household. the authority also includes the authority to form a law in its area. related to service indicators that can be carried out and managed by local governments are related to management in the tourism sector and the environment. bali province which is an autonomous region that has an attachment to the world of tourism as one of the economic drivers of the regional community must have regulations to regulate the course of tourism activities.41 this regulation can be established by the government of bali in accordance with the provisions applicable in article 18 of the indonesian constitution related to regional autonomy. the government of bali in its implementation has formed regulations related to the tourism sector, but we need to note that tourism activities are not a single sector but have an influence on other sectors, especially the environmental sector. the development of tourism is very influential on the environment both positive and negative aspects.42 41 long and kindon, supra note 3. 42 sriyono sriyono and amin purnawan, legal protection of participants applications for land certificates through complete systematic land registration (ptsl) in blora regency, 3 jurnal daulat hukum 171–178 (2020). http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 79 available online at http://journal.unnes.ac.id/sju/index.php/jils indigenous and cultural peoples are not only owned by bali, but also by a number of regions in indonesia in general. the culture of indigenous peoples in bali is part of local wisdom and as a tourism economic resource. therefore, the regulation of the cultural existence of indigenous peoples (bali) will be seen from relevant national or local legal instruments. it aims to emphasize that indigenous culture is a valuable asset as an economic resource for tourism. the following is a description of this rule:43 1. law no. 10 of 2009 on tourism based on article 1 paragraph (5) of the tourism law, it explicitly specifies that culture is one of the tourist attractions owned by indonesia. given the importance of culture to indonesia, especially in bali, tourism should always pay attention to aspects of cultural diversity and local wisdom, as outlined by article 6 of the tourism law which specifies that tourism takes into account cultural peculiarities. 2. bali provincial regulation no. 2 of 2012 on bali cultural tourism culture based on article 1 paragraph (12) of the regulation on balinese cultural tourism is all ideas, behavior and work of humans and/or groups of people. based on this definition, culture is considered human creativity, taste, and wealth, both tangible and intangible. there is absolutely no statement that states that culture has economic value for the life of balinese people so that it becomes the development of a tourist village and becomes one of the economic resources of tourism.44 43 i gusti ayu putri kartika, pengaturan hukum dan penegakan hukum terhadap benda cagar budaya di propinsi bali. thesis (surabaya: universitas airlangga, 2003) 44 world tourism organization. international tourism: a global perspective. (1997). http://journal.unnes.ac.id/sju/index.php/jils 80 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils under the regulations, culture, tourism and indigenous peoples are recognized and their existence has been regulated. existing cultural arrangements are limited to the cultural identity of indigenous peoples and as a tourist attraction for indonesia, but there are no regulations defining culture as an economic resource.45 this situation proves that there are empty norms of cultural regulation that have not been recognized and protected by culture as one of the economic resources of tourism. the void of legal norms caused by the absence of laws and regulations that ensure legal protection for indigenous cultures as one of the economic resources of tourism can be resolved through the creation of related laws and regulations. in this case, the government can revise the tourism law by adding some norms related to culture as a tourism economic resource starting from its definition, utilization, and management, or can form special regulations (lex specialists) related to culture as one of the economic resources of tourism.46 the complexity of the problems that occur in the tourism industry is closely related to the development of tourism which also has an impact on the environment. reflecting on the impact caused, environmental conservation efforts are needed. conservation efforts can be done by enacting regulations related to tourism whose content regulates the protection of the environment.47 through the authority of local government autonomy granted by the central government. local governments have the right to form regulations that are included in concurrent government affairs. the government of bali as the implementer of regional autonomy issued regulation no. 58 of 2012, and regulation no. 2 of 2012. local regulations have indicated 45 michel picard & robert e wood, tourism, ethnicity, and the state in asian and pacific societies (1997). 46 shepherd, supra note 8. 47 geriya, supra note 9. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 81 available online at http://journal.unnes.ac.id/sju/index.php/jils environmental observations of tourism activities in bali. both for the community, business owners, and tourists are contained in the elucidation points of the article which oblige in carrying out tourism activities in the context of preserving nature. related to this, the legal consequences that arise if the provisions in regional regulation number 2 of 2012 are violated, criminal sanctions will be imposed in accordance with article 27 paragraph (3) and paragraph (4)48. based on the substance of governor bali regulation no. 58 of 2012 concerning culture and protection program for bali cultural tourism, and bali provincial regulation no. 2 of 2012 concerning balinese cultural tourism has shown observations and regulations on the environment in terms of prevention of the impact caused by tourism development.49 but in the procurement of a rule must be accompanied by the implementation of the article listed. law enforcement to business entities or individuals who violate the provisions of the article must be subject to strict sanctions as contained in the regulations. so, the issue of a rule must be balanced with strict supervision and also strict enforcement, so that the points protected from the regulation can be implemented properly on the ground. the state has a role to defend the rights of indigenous villages in bali because it has a uniqueness that is not owned by other countries, so the concept of cultural tourism can be sustainable according to the expectations of indigenous balinese hindus. today indigenous peoples and adat villages in bali are faced with the concept of tourism neolibelism / capitalism that competes with capitalism funders. the inclusion of tourism capitalism in bali globally needs serious handling to give local people a driving force for balinese cultural tourism as a concept that is sustainably championed in global tourism. to that end, 48 genta & sarjana, supra note 36. 49 id. http://journal.unnes.ac.id/sju/index.php/jils 82 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils the role of the state becomes very important in regulating, protecting indigenous peoples and traditional balinese villages based on hinduism and the philosophy of tri hita karana50. bali's tourism policy with the concept of cultural tourism provides a role for the government to produce "tourism laws" that favor the rights of the balinese people both in concept and in implementation for the benefit of indigenous villages in sustainable tourism management for the welfare of the balinese people in particular and the community indonesia generally. the role of bali's legislative and executive should contribute to the support of balinese culture in a sustainable manner51. tourism activity in bali, law must be able to anticipate not to happen social lag, economic lag, or cultural lag, that is backwardness experienced by certain groups in indigenous society of bali which social religious, which only as "spectacle of tourism", country able to give the protection of sustainable tourism business law that is aligned with bali's indigenous peoples. authority of the provincial government of bali in the development of cultural-based tourism villages in bali province tourism law associated with desa pakraman states that the management of tourist attraction can be done by provincial government, pakraman village, traditional institution, individual and business entity. furthermore, it is mentioned that pakraman villages and traditional institutions have the right to develop rural 50 dewi et al., supra note 30. 51 giantari et al., supra note 29. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 83 available online at http://journal.unnes.ac.id/sju/index.php/jils tourism according to local potential; and managers of tourist attraction are entitled to provide special guides (article 26 paragraph (2.3)). in this context, customary institutions (adat villages/pakraman villages), traditional institutions have the right to develop rural tourism according to local potential; in this case also that the management of attraction is entitled to provide special guides. in the development of bali tourism, the provincial government may provide financial support for the development of tourism managed by indigenous villages or pakraman villages52. in line with the tourism village development acceleration program implemented by the government through the ministry of tourism in synergy with the ministry of village development of disadvantaged regions and transmigration to realize 2000 more tourist villages. the bali provincial government has only succeeded in realizing 179 tourist villages as of 2021 until now as shown on figure 1 and table 1. figure 1. map of tourist villages in bali province source: bali government tourism office (https://disparda.baliprov.go.id/category/desawisata/) 52 laksana and bagus, supra note 28. http://journal.unnes.ac.id/sju/index.php/jils https://disparda.baliprov.go.id/category/desa-wisata/ https://disparda.baliprov.go.id/category/desa-wisata/ 84 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils table 1. tourist village data in bali province of 9 districts in bali with 179 temporary tourist villages no. county name number of tourist villages 1. badung 11 2. denpasar 6 3. gianyar 24 4. buleleng 31 5. jembrana 7 6. karangasem 26 7. tabanan 24 8. bangli 31 9. klungkung 19 total 179 source: bali government tourism office (https://disparda.baliprov.go.id/category/desawisata/ ) the development of tourist villages is not easy and requires commitment from its managers, village officials and the active participation of its citizens, as well as the implementation of the bali regional regulation and the indonesian national law. village tourism is an ideal model to realize community-based tourism development and encourages the participation of local communities in managing village tourism destinations. ecotourism development through ecological tourism villages can reduce the mass tourism industry's potential to degrade the quality of the environment53. the tourism industry often exploits the potential of nature (agricultural land); thus, it has affected land conversion, and this trend is increasingly widespread. tourism also involves the potential for the emergence of hedonic behavior, the shifting of traditional values of local cultures, and insufficient community involvement. in rural communities, the socio-cultural life values are manifested, 53 id. http://journal.unnes.ac.id/sju/index.php/jils https://disparda.baliprov.go.id/category/desa-wisata/ https://disparda.baliprov.go.id/category/desa-wisata/ jils (journal of indonesian legal studies) volume 7(1) 2022 85 available online at http://journal.unnes.ac.id/sju/index.php/jils maintained, preserved as important customs and known as local wisdom or local indigenous traditions. the values of local indigenous contain adaptive forms of mitigation for the community in managing their ecological area. ecotourism management model is unique because the villagers perform all the roles54. in the context of social construction toward the reality of branding village ecotourism in bali, it cannot be separated from the values of bali's local indigenous people. the values of local indigenous people and the concept of the balinese cosmology system are manifestations of the sacred teachings of hinduism. these values are a way of life in the socio-cultural life of the balinese people. with a touch of local aesthetic values and local architecture, the balinese lifestyle has a character of uniqueness, authenticity, and originality. related to the importance of the idea to pay attention to and carry out the values of local indigenous people in the development of ecological tourism villages55. balinese culture is the main foundation of bali tourism, to maintain the continuity of bali tourism the provincial government of bali established bali provincial regulation no. 2 of 2012 on bali cultural tourism, (hereinafter referred to as the bali cultural tourism regulation).56 in various laws and regulations in indonesia, the term "tourist village" is stated, but there is no single legislation that defines or establishes the norms for the establishment of a tourist village. the hierarchical arrangement of tourist villages can be found in article 29 paragraph (3) letter b of government regulation no. 50 of 2011 on the national tourism development master plan 2010-2025 stipulates 54 kasih et al., supra note 11. 55 dewi et al., supra note 30. 56 leni erviana, makna sesajen dalam ritual tilem dan implikasinya terhadap kehidupan sosial keagamaan (studi pada umat hindu di desa bali sadhar tengah kecamatan banjit kabupaten way kanan). thesis (lampung: uin raden intan, 2017). http://journal.unnes.ac.id/sju/index.php/jils 86 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils those strategies to increase the potential and capacity of regional resources through the development of productive businesses in the tourism sector one of them by developing the potential of local resources through tourist villages.57 article 1 paragraph (3) of the indonesian constitution affirms that indonesia is a state of law. this means that in the implementation of the administration must be based on the provisions of the constitution of the laws and regulations, including the regional regulation. regarding the implementation of tourism implementation authority related to tourism village, law no. 10 of 2009 on tourism (hereinafter referred to as tourism law) is not the only source although it is true is the first reference.58 the local government referred to in this study is the governor of bali as an element of the implementation of government affairs with the provincial parliament of bali in the establishment of the tourism village regulation.59 article 18 of the indonesian constitution can be said to be the starting point for the autonomy of local governments in indonesia in taking care of their own households. regional autonomy is the embodiment of a decentralized system that divides the authority of the central government into local governments. through regional autonomy, the region has the right, authority and obligation in running the government in the region. article 18 paragraph (2) of the nri constitution specifies that provincial, district, and municipal governments regulate and take care of their own government affairs according to the principle of autonomy and assistance duties.60 furthermore, in article 18 paragraph (6) of the indonesian 57 shepherd, supra note 8. 58 genta and sarjana, supra note 49. 59 mohammad mulyadin and priasukmana soetarso, pembangunan desa wisata: pelaksanaan undang-undang otonomi daerah, 2 info sosial ekonomi 37-44 (2001). 60 laksana and bagus, supra note 28. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 87 available online at http://journal.unnes.ac.id/sju/index.php/jils constitution it is determined that the local government has the right to establish local regulations and other regulations to carry out autonomy and assistance duties. in article 12 paragraph (3) of the local government law it is expressly stated that tourism is a government business of choice, part of the concurrent government affairs submitted by the center to the region and which must be organized by the region in accordance with the tourism potential owned by the area. the potential in question is the availability of resources in areas that have been and will be managed that have an impact on improving the welfare of the community.61 the provincial government of bali as the organizer of the government given the mandate by the law should utilize its authority in the establishment of the bali provincial regulation on tourist villages in bali. it is important for the provincial government of bali to fill the void of norms at the provincial level so that there is a reference for the regency/city government in bali in the implementation of tourist villages while ensuring legal certainty in the implementation of tourist villages in bali through the establishment of provincial regional regulations on tourist villages based on balinese culture.62 in the general provisions of article 1 number 1 of the pppu law it is determined that what is meant by the establishment of legislation is a process that includes the stages of planning, preparation, discussion, endorsement or determination and promulgation. previously, the customary village in bali was referred to as pakraman village in bali provincial regulation no. 3 of 2001 on 61 a. a istri eka krisna yanti, kewenangan pengelolaan desa wisata dalam perspektif peraturan daerah provinsi bali nomor 4 tahun 2019 tentang desa adat di bali. 16 kerta dyatmika 59-68 (2019). 62 roth, supra note 26. http://journal.unnes.ac.id/sju/index.php/jils 88 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils pakraman village as amended by bali provincial regulation no. 3 of 2003 (hereinafter referred to as pakraman village regulation) which has now been replaced with regional regulation of adat village, because pakraman village regulation is considered to be not in accordance with the current legal development and conditions of bali, including the development of bali tourism.63 padruwen adat village which is inmateriil is a belief system, traditional values, customs, arts and culture, as well as local wisdom imbued with hinduism, while what padruwen means adat villages that are material is the wewidangan adat village, adat village land, natural resources, economic resources that are the traditional rights of adat villages, sacred areas, sacred places, sacred buildings belonging to adat village, buildings belonging to adat villages, objects of a magical religious nature, finance and sarwa mulé; and other material wealth. in the management of padruwen adat village as a tourist village can be managed by the customary village if it is a right of origin and local scale, as contained in article 25 of the customary village regulation.64 the provincial government of bali, namely the governor of bali and the provincial parliament of bali has the authority in the establishment of the bali provincial regulation on tourist villages to ensure legal certainty in the formation and management of tourist villages in bali.65 the traditional village is the "home" of balinese culture which is the main attraction of bali tourism. before the enactment of the customary village regulation, it was not specifically regulated the authority that indigenous villages have in the management of tourism destinations, especially tourist villages.66 63 picard, supra note 36. 64 poffenberger and zurbuchen, supra note 41. 65 kasih et al., supra note 11. 66 poffenberger and zurbuchen, supra note 41. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 89 available online at http://journal.unnes.ac.id/sju/index.php/jils the existence of tourism village is also contained in bali provincial regulation no. 10 of 2015 on the master plan for tourism development of bali province 2015-2029 which in article 10 paragraph (1) states that the development of tourist villages involving community participation is one of the targets of tourism builders. bali in the provisions of article 10 (2) it is mentioned that the indicators of bali tourism development targets listed in paragraph (1) of regulation no.10 of 2015 are listed in annex i.67 however, in appendix i of regulation no. 10 of 2015 does not list indicators of tourism village development, this of course becomes the norm of emptiness in efforts to maximize the development of tourist villages.68 the absence of norms in the formation of tourist villages that has implications for the difficulty of developing cultural-based tourist villages especially during the covid-19 pandemic as it is today, the development of cultural-based tourist villages that are expected to improve the welfare of people experiencing a slump in the midst of the covid-19 pandemic69. based on the above, the local government has the authority to form local regulations to develop traditional culture-based tourist villages as a source of tourism economy in bali.70 the provincial government of bali should be able to provide legal certainty in the implementation of tourist villages in bali, considering the number of tourist villages in bali even provide high economic value for the community.71 in the customary village regulation, it is quite clear to spell out the authority owned by adat village in the management of 67 genta and sarjana, supra note 49. 68 michel picard & robert e wood, tourism, ethnicity, and the state in asian and pacific societies (1997). 69 mulyadin and soetarso, supra note 59. 70 ade arif firmansyah, wan satriawan, siti khoiriah, and yusnani hasyimzoem, hukum pemerintahan daerah (2017). 71 shepherd, supra note 8. http://journal.unnes.ac.id/sju/index.php/jils 90 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils tourism village. however, the dualism of indigenous villages that applies today in bali causes the overlap of indigenous village and village dinas organizations, for that there needs to be a special supervision team in the implementation of tourism villages so that the implementation is able to prosper krama adat villages72. balinese culture is built through a very long civilization process, from prehistoric times to modern civilization, and the global era. in the pressures and effects of the fast and complex system of modern and global civilization, balinese culture exhibits dynamic, selective, flexible, and effective nature. pariwiata activity is a multi-aspect activity, national and international, has function as agent of economic development and agent of cultural development covering multidimensional aspects, therefore tourism law policy must be directed to tourism law must be able to consider the characteristic, function, and all aspects of tourism business activities73. the policy of bali provincial government in revitalizing the culture, by always considering hinduism as the basis and the buffer of bali tourism is a supporting factor that resulted in bali remains a tourist destination with tourism objects and attractions that are characteristic of balinese culture and religion hindu. law as one element of culture in a regulatory system, that can be understood anatomy with jabaran that, the law is one of several institutions in society that helped create order. in this context tourism and culture must be able to provide welfare, happiness for humans in bali, especially hindus as a supporter of culture74. 72 poffenberger and zurbuchen, supra note 41. 73 i k g bendesa & i m sukarsa, an economic survey of bali, 16 bull. indones. econ. stud. 31–53 (1980). 74 shepherd, supra note 8. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 91 available online at http://journal.unnes.ac.id/sju/index.php/jils authority of the ecotourism management in belo village, atauro island, timor-leste ecotourism management in beloi village is currently still dominated by the government and the private sector. the lack of involvement of local communities causes local communities to be unable to directly benefit in the event that this is an economic benefit. based on the phenomenon that occurred in beloi village, it was found that local communities do not have full rights in involvement in the field of tourism in terms of planning, implementing, and managing ecotourism businesses and their profits. because almost all tourism facilities are fully owned by the government and investors. in addition to the limping of ecotourism management in beloi village, the impact of participation that must be considered is due to the lack of local community involvement. because the role of local communities is less involved by the government or does not take part in the planning and implementation of tourism programs. intersectoral cooperation in government agencies that aims to spur the progress of tourism is less than optimal. as a result, the overall performance of the tourism industry has been low, concerning the sharing of benefits or profits. the ownership of tourism facilities dominated by the government and investors caused the local people of beloi village to not feel any economic benefits at all. there is not even a form of cooperation between the government and investors and local communities regarding profit sharing. the government has a role in regulating, providing, and allocating infrastructure related to tourism needs. not only that, but the government is also responsible for determining the destination of the tourist trip. the government's http://journal.unnes.ac.id/sju/index.php/jils 92 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils macro policy is a guide for other stakeholders in playing their respective roles. the government and investors must develop a clear plan regarding environmental carrying capacity efforts to carry out this very strategic role, such as what is the range of capacity or capacity of the location for tourists, where the location of accommodation, parking lots, parks, attractions, accessibility routes to tourist destinations and around tourist areas. in addition to the government and investors who have an important role in managing ecotourism, local communities are also one of the stakholders who must be involved in ecotourism management. local people, especially indigenous people who live in tourist destinations, become one of the actors in ecotourism, because basically those who participate provide most of the attractions and also determine the quality of tourist products. in addition, local residents are the direct "owners" of tourist attraction products offered as well as consumed by tourists. water, land, forests, and scenery that are tourist resources consumed by tourists and other tourist actors are in the hands of the local community. the management of ecotourism in beloi village can be said to be far from what it should be. the government as a policy maker and facilitator seems to be running alone in terms of tourism management. likewise, investors as capital providers only care about their own profits. the local community as the owner of the attraction is not involved in the development of tourism in their own area at all. the management of a tourism destination should involve three stakeholders who each have a role and support each other. these three stakeholders are needed so that the management of a destination is not limping and each party supports each other and no party is harmed. seeing the phenomenon that occurs in beloi village, management like this is of course very necessary so that not only the http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 93 available online at http://journal.unnes.ac.id/sju/index.php/jils government and investors who benefit from tourism but especially local people as owners and who will continue to interact with the attraction feel the direct benefits. ecotourism management in beloi village is still controlled by the government and capital owners which can be seen from the ownership of tourism facilities such as lodging and transportation tools. the government and investors each run independently for the benefit of each party. the government should as a policy maker embrace local communities in terms of tourism management. the government should also be able to work with investors so that ecotourism management in beloi village has the same goal, namely advancing beloi village as a tourism destination and prospering the local community. the involvement of local communities is needed in the management of a tourism destination. apart from being the owner of the destination, the local community will then come into direct contact every day with the destination so that it is appropriate for the local community to be involved in every management process. local communities must be included in every development plan, involved in the management of an organization, included in decision making and of course must be involved in managing destinations every day. the involvement of local communities aims to help the welfare of local communities in terms of income, in addition to that the community always maintains its belongings which are used as an attraction which in this case is all natural resources, culture, and manmade hands. by maintaining the resources owned, then the destination is in demand by tourists. therefore, the involvement of local communities is needed so that the destinations they want to develop which as a place for people to live are visited by tourists. in addition to maintaining the resources owned, the involvement of local communities, especially so that local communities can feel the economic benefits directly. to realize an http://journal.unnes.ac.id/sju/index.php/jils 94 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils ecotourism management model in beloi village that is better than before, it is necessary to involve local communities both in terms of planning, implementation, and management. what is meant by the ecotourism management model is to use a method or method in management that is even better than before so as to provide benefits and not harm any party, both local communities, governments and investors involved in the management of marine ecotourism in beloi village. therefore, further policies are needed to regulate the rights and obligations of local communities in managing tourist villages. conclusion this research concluded that culture, tourism, and indigenous peoples have been recognized and regulated in indonesia. in indonesia, issues regarding traditional villages and their policies sometimes experience inequality. where, the existing cultural arrangement is only limited to the cultural identity of indigenous peoples and as a tourist attraction for indonesia. however, there is no regulation that defines culture as an economic resource. this situation proves that there are empty norms of cultural regulation that have not been recognized and protected by culture as one of the economic sources of tourism. so that further policies are needed by the government. futhermore, it is also emphasized that the condition in bali indonesia is different from what happened in timor leste, precisely in the tourist village of beloi. in fact, there is absolutely no participation of indigenous peoples in the development of tourist villages. whereas the participation of local communities is the key to developing a tourist village. therefore, a policy is needed to utilize human resources firmly and effectively, instead of just blaming the lack of budget. http://journal.unnes.ac.id/sju/index.php/jils jils (journal of indonesian legal studies) volume 7(1) 2022 95 available online at http://journal.unnes.ac.id/sju/index.php/jils references 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"kewenangan pengelolaan desa wisata dalam perspektif peraturan daerah provinsi bali nomor 4 http://journal.unnes.ac.id/sju/index.php/jils http://dx.doi.org/10.30659/jdh.v3i1.8431 https://doi.org/10.15294/jllr.v2i4.48757 https://doi.org/10.17304/ijil.vol10.1.286 100 jils (journal of indonesian legal studies) volume 7(1) 2022 available online at http://journal.unnes.ac.id/sju/index.php/jils tahun 2019 tentang desa adat di bali". kerta dyatmika 16, no. 2 (2012): 59–68. https://doi.org/10.46650/kd.16.2.738.59-68. yanti, a.a. istri eka krisna. "community based tourism dalam menyongsong new normal desa wisata bali”. jurnal komunikasi hukum (jkh) 7, no. 1 (2021) :72-86. https://doi.org/10.23887/jkh.v7i1.31458. about authors dewa gede sudika mangku is a lecturer at the department of law, universitas pendidikan ganesha, indonesia. his area of expertise concerning international law, comparative law, law and society, as well as law and culture. he obtained bachelor of law from universitas arilangga, suarabaya indonesia, and mester and doctoral degree from universitas gadjah mada, yogyakarta, indonesia. some of his recent publications such as crimes of genocide in the viewpoint of international criminal law (indonesian journal of criminal law studies, 2022), analysis of diplomatic law in lifting the honorary consul of the state of indonesia to palestine (jurnal pendidikan kewarganegaraan undiksha, 2022), the role of the national agency for border management in maintaining the territorial sovereignty in the land bord between indonessia and timor leste (ahmad dahlan international conference on law and social justice), and perlindungan hukum terhadap tari tradisional sebagai warisan budaya bangsa indonesia ditinjau dari hukum internasional (jurnal pendidikan kewarganegaraan undiksha, 2021). now, he also serving as head of department of law at the faculty of law and social sciences, universitas pendidikan ganesha, indonesia. ni putu rai yuliarti is a lecturer at the department of law, ganesha university of education, baliindonesia. she has taught and researched in the fields of law, human rights and development, sociology of law, etc. she obtained bachelor and master degree from faculty of law, universitas udayana, bali, indonesia. some of her works have been published on several journals such as ratifikasi terhadap traktat persetujuan paris (paris agreement) sebagai wujud implementasi komitmen indonesia dalam upaya mitigasi dan adaptasi perubahan iklim (jurnal pendidikan kewarganegaraan undiksha, 2022), analysis of workload, rest rights, and the rights to enjoy entertainment in gender differences (jurnal komunikasi hukum, 2022), and indigenous peoples' participation in the management of balinese cultural tourism (legality: jurnal ilmiah hukum, 2021). ruslan is a lecturer at the department of citizenship education, syiah kuala university, banda acehindonesia. he has taught and researched in the fields of law and citizenship education. he was born in tanjung balai, asahan, on february 3rd, 1976. graduated with bachelor degree of civics education, faculty of teacher education of syiah kuala university in 2001. continued and graduated with master degree of educational psychology, faculty of education, universiti kebangsaan malaysia (ukm) in 2011. he was appointed as a lecturer at universitas syiah kuala since 2003. he obtained a doctoral degree of education of social sciences from postgraduate program of syiah kuala university. in addition, he also passed the certification as a lecturer in 2013 with educational psychology expertise. currently he also serving as a member of the sjmf at the faculty of teacher education for the second term. seguito monteiro is a lecturer at the faculty of law, university of dili (universidade dili), timor leste. he has taught and researched in the fields of international law. dahlan surat is a lecturer at the universiti kebangsaan malaysia, selangor-malaysia. http://journal.unnes.ac.id/sju/index.php/jils https://doi.org/10.46650/kd.16.2.738.59-68 https://doi.org/10.23887/jkh.v7i1.31458 https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=vws0ncoaaaaj&sortby=pubdate&citation_for_view=vws0ncoaaaaj:nxb4pa-qfm4c https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=vws0ncoaaaaj&sortby=pubdate&citation_for_view=vws0ncoaaaaj:nxb4pa-qfm4c https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=vws0ncoaaaaj&sortby=pubdate&citation_for_view=vws0ncoaaaaj:8d8msizdqcsc 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https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=lppnmtsaaaaj&sortby=pubdate&citation_for_view=lppnmtsaaaaj:j8sevjwlnxcc https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=lppnmtsaaaaj&sortby=pubdate&citation_for_view=lppnmtsaaaaj:j8sevjwlnxcc https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=lppnmtsaaaaj&sortby=pubdate&citation_for_view=lppnmtsaaaaj:feoibwpwpkic https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=lppnmtsaaaaj&sortby=pubdate&citation_for_view=lppnmtsaaaaj:feoibwpwpkic https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=lppnmtsaaaaj&cstart=20&pagesize=80&sortby=pubdate&citation_for_view=lppnmtsaaaaj:5awf1xo2g04c https://scholar.google.co.id/citations?view_op=view_citation&hl=en&user=lppnmtsaaaaj&cstart=20&pagesize=80&sortby=pubdate&citation_for_view=lppnmtsaaaaj:5awf1xo2g04c 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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