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RESEARCH ARTICLE
FOUR CONDITIONS FOR
RECOGNITION OF TRADITIONAL
SOCIETY IN THE CONSTITUTION
AND STATE REVENUE INCOME
Ni Ketut Sari Andyani1a , Gede Marhaendra Wija Atmaja2,
I Ketut Sudantra3
1,2,3 Doctoral Program, Universitas Udayana, Bali, Indonesia
aUniversitas Pendidikan Ganesha, Bali, Indonesia
niktsariadnyani@gmail.com
Submitted: June 10, 2021 Revised: September 11, 2021 Accepted: Oct 28, 2021
ABSTRACT
This article is an interpretation of Article 18B paragraph (2) of the
Indonesian constitution: four requirements for recognition of
traditional societies. Using sustainable tourism development as a case
study, explores the important contribution of genealogical territorial
participation and the limits of recognition of the role of the State in
providing legal protection and traditional societies as the main coders
Indonesian Legal Thoughts Amid Various World Legal Thoughts
Published by Faculty of Law, Universitas Negeri Semarang, Indonesia
Volume 6 Issue 2, November 2021 ISSN (Print) 2548-1584 ISSN (Online) 2548-1592
JILS (JOURNAL of INDONESIAN LEGAL STUDIES)
http://journal.unnes.ac.id/sju/index.php/jils
mailto:niktsariadnyani@gmail.com
https://orcid.org/0000-0002-5450-5384
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of legal pluralism. This exploration reveals four different conditions:
conditions for survival, dynamic conditions, conditions in accordance
with the principle of integration, and regulated by law. The fact that
these conditions are so intricately interwoven poses unique
challenges for academics and legal practitioners, but also provides a
potential blueprint for constitutions and state revenues.
Keywords: Law and Finance; Legal Pluralism Theory; Genealogical
Territory Territorial
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TABLE OF CONTENTS
ABSTRACT …………………………………………………….…. 307
TABLE OF CONTENTS ……………………………..…...….…... 309
INTRODUCTION ………………………………….…………….. 310
TRADITIONAL SOCIETY: CONDITIONS STILL ALIVE ……. 318
DYNAMIC CONDITIONS: RECOGNITION OF
TRADITIONAL SOCIETIES & CUSTOMARY LAW
COMMUNITIES ………………………………………………….. 323
CONDITIONS ACCORDING TO THE PRINCIPLE OF
INTEGRATION ………………………………………………….. 326
CONDITIONS ARE REGULATED BY LAW …………………. 327
CONCLUSION …………………………..………………………. 328
REFERENCES ………………………………………………….… 329
Copyright © 2021 by Author(s)
This work is licensed under a Creative Commons
Attribution-ShareAlike 4.0 International License. All
writings published in this journal are personal views of the authors and
do not represent the views of this journal and the author's affiliated
institutions.
HOW TO CITE:
Adnyani, N. K. S., Atmaja, G. M. W., & Sudantra, I. K. (2021).
Four Conditions for Recognition of Traditional Society in the
Constitution and State Revenue Income. JILS (Journal of
Indonesian Legal Studies), 6(2), 307-332.
https://doi.org/10.15294/jils.v6i2.48044
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INTRODUCTION
RECOGNITION OF TRADITIONAL communities has become old
existing natives in state life. Recognition of traditional society
occurred since the 16th-17th century1. Starting worldwide since
international organizations, such as the ILO (1950), United Nations,
World Bank, OMP (1982) and OD (1991), especially in third countries,
such as in Latin America, Africa and Asia Pacific. In North America,
there have been protests by native people asking for development
justice. Provoking the ILO and the United Nations raises its
generative issues in labor protection. In Indonesia, it was initiated by
a number of the Indigenous Peoples Alliance of the Archipelago
(AMAN)2. Academics and practitioners of Law and Economics are
busy with the Discourse on Settlement of Losses on State Income3.
This article seeks to answer important questions about the role of the
constitution in supporting the recognition of traditional communities
and state income, encouraging investment in tourism, and
stimulating local economic growth and preserving the environment.
To answer this question, this article seeks to measure the "strength" of
the law on the protection of taxpayers and tax collectors, then
determine the level of classification of law enforcement activities
according to the Indonesian national legal system with the size of the
balancing fund and the structure of state income from the revenue-
sharing fund between the central government and the government.
area. A striking finding is that there is better legal protection for
1 Besse Sugiswati, Perlindungan Hukum Terhadap Eksistensi Masyarakat Adat Di
Indonesia,, 17 PERSPEKTIF 31-43 (32) (2012).
2 Azmi AR Siradjudin, Pengakuan Masyarakat Adat dalam Instrumen Hukum
Nasional, 1 YAYASAN MERAH PUTIH SULAWESI TENG. 1 (2010).
3 Arifki Nindi Achid, Penyelesaian Kerugian pada Pendapatan Negara melalui
Pengungkapan Ketidakbenaran (Suatu Kajian Hukum Doktrinal dalam Sistem
Perpajakan, 1 J. SUARA HUK. 91–104 (2019).
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investors between common law countries than civil law countries4.
This methodology yields a finding: it offers better legal protection to
taxpayers than the tax authorities' obligations as government
implementers.
The science of law and income of this third country has become
the target of criticism in various fields. The imposition of taxes on the
income of multinational companies in the United States5. Perhaps
most notably, it has been criticized for adopting a post-capitalist
approach to the exchange of labor-generated commodities and the
form of the nation-state resulting in a community-based Critique and
Alternative of Employment around the automation of production and
the provision of basic income for employment. Criticism of rights, that
rights are indeterminate and regressive6. The right to control the state
over natural resources as a source of livelihood for many people7.
Amendments result in lowering the income tax base on state
government corporations (SGUs)8. The author places the focus of this
study in the domain of “legal pluralism paradigm” with the focal point
of progressive legal studies. answer the legal problems faced, ignore
the law in the context of fair, correct, beneficial, and protect the
interests of the community. Legal science avoids the question of
whether the constitutional protection of taxpayers as a recognition of
a "strong" traditional society is desirable from a tax compliance
perspective. For the most part, these criticisms are well-founded. The
4 Dan Awrey, Three Projects in the New Law and Finance, 11 GRUYTER, ACCOUNT.
ECON. LAW 9-25 (10) (2021).
5 Chantal Thomas, Customary International Law and State Taxation of Corporate
Income: The Case for the Separate Accounting Method, 1 BERKELEY J. INT’L L 99 (1996).
6 Paul. D Butler, Poor people lose: Gideon and the critique of right, 122 YALE LJ 2176
(2012).
7 SATJIPTO RAHARDJO, ILMU HUKUM CETAKAN VII (2014).
8 K Gopakumar, Computation of Taxable Income of State Government Undertakings In
India: A Critique in View of The Amendments in Income Tax Law, J. INDIAN LAW
INST. 244-269 (244) (2015).
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perception of taxpayers assumes that tax collection in the
management of tourist areas is quite burdensome. So far, the
reciprocity of tax realization on the arrangement of supporting
infrastructure in tourism areas is very minimal. Likewise, the tax
authorities in collecting taxes sometimes intervene by closing
business operating licenses because taxpayers do not fulfill their
obligations. Supposedly as a form of State recognition of traditional
community tax subjects, the State through the Fiscal can provide tax
relief, extension of payment period, whitening and warning before
the execution of license revocation. However, the question of the
relationship between law and state income remains very important
even more so the 2008 crisis, caused by the collapse of international
financial institutions in the west9. What we need is a new and better
approach to frame and answer questions around the recognition of
traditional societies as taxpayers, theoretical and methodological
taxpayer compliance and tax authorities designed to avoid tax
evasion that cloaks third countries from the perspective of law and
state income.
Fortunately, the recognition of traditional society in the
constitution that explores the relationship between law and state
income continues to grow and develop. Currently, scholars are asking
more in-depth questions about this relationship, using broader tools
to explain these questions, and applying these tools to examine
broader areas of taxpayer compliance, such as: Taxpayer Honesty,
Compliance and Awareness, Tax Mindness, Tax Discipline.
Predictably, however, the characteristics of the company represented
by the size of the company (size), debt to equity ratio, profitability
(ROI) together have an influence on the level of taxpayer
9 Dea. K Raz, Arisyi. F., Indra, Tamarind. P. K., & Artikasih, Krisis keuangan global
dan pertumbuhan ekonomi: Analisa dari perekonomian Asia Timur, 15 BUL. EKON.
MONET. DAN PERBANK. 37-56 (37) (2012).
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compliance10. has contributed to the level of fragmentation in the legal
community and state income: in each region in Indonesia, traditional
communities with traditional village institutions, which are treated as
sectors, tend to create fragmentation of interests11. Investment at the
customary village level will foster economic activity and the
competitiveness of traditional villages. District government capacity
in supporting villages is low (average Local Original Income). This
fragmentation is not necessarily a bad thing. Indeed, specialization
and diversity are now arguably the two greatest powers of state law
and income. In the same way, this fragmentation has placed great
stress on the intellectual bonds that bind this ever-expanding
scientific community. The fragmentation and atomization of science
into strict disciplines has reduced the substance of the law12. The
scientific community wants to correct its mistakes by rejecting the
fragmentary and atomistic portrait of nature and life. In particular,
third country law and economics scholars, this often occurs in the
neglect of the recognition of the rights of traditional communities
because there is no ideal model for regulating the recognition of
traditional communities by law as the fourth requirement for
recognition of the Indonesian constitution.
One of the negative impacts of development is the neglect of the
social and cultural order of indigenous peoples13. The political
symptom of neglect is marked by changes in capitalist-oriented
10 Muhammad Rizal Hani, Syafrida., & Lubis, Pengaruh Karakteristik Perusahaan
terhadap Kepatuhan Wajib Pajak, 10 J. RIS. AKUNT. DAN BISNIS 24 (2016).
11 I. I BUDIMAN, SUDJATMIKO, & KOMISI, PEMBERDAYAAN MASYARAKAT,
PEMBANGUNAN DESA, DAN PEMBANGUNAN KAWASAN PERDESAAN
BERDASARKAN UNDANG-UNDANG DESA. (2014).
12 SATJIPTO RAHARDJO, HUKUM DALAM JAGAT KETERTIBAN (BACAAN MAHASISWA
PROGRAM DOKTOR ILMU HUKUM UNIVERSITAS DIPONEGORO) (2006).
13 Mulyadi Mohammad, Pemberdayaan Masyarakat Adat Dalam Pembangunan
Kehutanan, 10 J. PENELIT. SOS. DAN EKON. KEHUTAN. 224-234 (224) (2013).
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economic development policies that are a big challenge for the
recognition of indigenous peoples in Indonesia14. Property is defined
as the right to something of value that is recognized by a public
authority and is justified by laws and regulations15. There is no legal
recognition of the existence of indigenous communities and their
territories. In a situation like this, the biggest catastrophe for
traditional communities is when they face the government and capital
owners who join together to run large-scale corporations to control
their forests or lands, either through GRTT which is considered
manipulative or by means of expropriation. This process has
strengthened the formation of a new accumulation circuit through
land grabbing which is considered legitimate land grabs16.
The urgency that plagues traditional societies is to fight back
with counter-territorial efforts and resistance actions, and in the end
force them to negotiate about identity, because identity boundaries
are determined by land. In politics, indigenous voices are often
ignored in higher social structures17. The relevance of the recognition
of traditional communities to development is as taxpayers who
participate in fulfilling payment obligations for the implementation of
tourism activities in their genealogical territorial areas. Taxes as state
14 Soeryo Adiwibowo Iskandar Zulkarnain, Endriatmo Soetarto, Satyawan
Sunito, Stifling of Customary People Political Voice of Recognition in Political
Economy Perspective (Case Study on Mapur Tribe Lom Bangka Belitung, 6 SODALITY
J. SOSIOL. PEDESAAN 24 (2018).
15 C Sikor, T. and Lund, Access and Property: A Question of Power and Authority, 40
DEV. CHANGE 1-22 (22) (2009).
16 LA Ito, T. Rachman, NF. Savitri, Power to Make Land Dispossession Acceptable: A
Policy Discourse Analysis of the Merauke Integrated Food and Energy Estate (MIFEE),
Papua, Indonesia, 1 J. PEASANT STUD. 1–22 (2014).
17 Anak Agung Ayu Intan Parameswari I Wayan Widyartha Suryawan, Idin
Fasisaka, Gerakan Simbolik Kultural Masyarakat Adat Sengwer Merespon
Marginalisasi Terkait Penerapan Program NRMP di Cherangany Hills, Kenya. 1 J.
HUB. INTER. 1-11 (2015).
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income must still be deposited because they have become an
obligation. The decline in tourism as a result of the Covid-19
pandemic has brought a shift from active taxpayers to passive
taxpayers. Caused by the non-operation of the tourism business due
to social restrictions. On the other hand, the tax authorities continue
to carry out their obligations to record the number of taxpayers and
intervene for orderly payments by sending warning letters and even
imposing fines. Traditional communities feel burdened with
obligations in the midst of a disaster emergency. The state also applies
relief from the extension of the payment period for the middle and
lower classes, but this is not enough to cover the high number of tax
debts due to the layoffs of one-third of Indonesia's population. Tax
waivers have harmed the state's income, because the government
needs an injection of operational funds in the field of accelerating
virus disaster management, pre-employment incentives and social
security for laid-off and laid-off workers. The first attribute is priority,
which serves to determine the target for timely tax imposition for all
parties. The second and third attributes are tax relief and time
concessions for taxpayers who have economic difficulties. Viewed
from the perspective of the State's recognition of this traditional
society, the hallmark of recognition is that it provides legal protection
and welfare guarantees for all citizens, places the law as control over
the flow of state income from the tax sector, the heart of economic
democracy.
It is understood that the explicit recognition of traditional
communities has been regulated in Article 18B paragraph (2) of the
Indonesian constitution. But a number of studies and studies by Law
and Economics scholars, government, and policy makers map out the
four requirements for recognition. First, the acknowledgment of being
still alive introduces a traditional society that is natural in describing
the function of law in compiling life in the midst of a plurality of
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customs, ethnicities, religions and cultures. In their community,
indigenous peoples need to fulfill their daily needs, stimulate
community economic regulation. However, important questions
remain about why and how this legal instrument works in fulfilling
the rights and obligations of traditional communities as taxpayers.
Second, discussing state income, a broad but theoretically testable set
of hypotheses about the relationship between the use of legal
instruments to "code" the fulfillment of tax obligations and the level of
non-compliance with tax payments. Scholars can and should test the
strength and limits of this hypothesis. Finally, it gives us a new
blueprint for how to conduct research at the intersection of law and
state income. This blueprint is based on four different, but closely
related, requirements for recognition: conditions for being alive,
dynamic, in accordance with the principle of a unitary state, and
regulating recognition by law.
This short article explores the promise and dangers of this
blueprint for a new state constitution and income. This exploration is
carried out through the lens of sustainable tourism development as a
case study, exploring the important contribution of genealogical
territorial participation and the limits of recognition of the role of the
State in providing legal protection and traditional societies as the
main coders of legal pluralism. However, at the same time, this case
study also illustrates the potential for denying the application of this
legal pluralism framework as a whole, in a context where laws and
regulations are still developing, and in a situation where the
relationship between law and state income is unequal due to the
neglect of traditional community recognition rights.
This article uses a normative legal research typology18. A process
to find the rule of law, legal principles and legal doctrines in order to
18 PETER MAHMUD MARZUKI, PENELITIAN HUKUM (2010).
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answer the legal issues faced in order to achieve legal goals that reflect
the values of justice19. Analyze the legal norms that have been set by
the authorized official20. The normative legal research method is
needed in presenting a legal argumentation. The study of this article
is based on the existence of an arrangement for the recognition of
indigenous people in tourism development which is interpreted as a
blurring of norms between Article 26 (2) of the Regional Regulation of
the Province of Bali No. 2 of 2012 concerning Balinese Cultural
tourism with Article 23 of the Bali Provincial Regulation No. 4 of 2019
concerning Desa Adat21. The approach used in normative legal
research is the statute approach22. The legal materials used in the
preparation of this article are primary legal materials in the form of
laws and statutory regulations as the main legal materials, while
secondary legal materials include legal reports, legal records, and
other legal papers that only have persuasive power23. Primary and
secondary legal materials are collected using a card system based on
subject matter to facilitate analysis and concepts related to certain
legal issues are recorded on the cards. As a theoretical framework in
this study, the theory of legal pluralism is used24; rule of law theory 25
and the theory of justice 26. The technique of analyzing legal materials
uses legal hermeneutic techniques using legal interpretation methods
so that the rules meet the elements of logic and develop rational
19 BAMBANG SUNGGONO, METODOLOGI PENELITIAN HUKUM (2017).
20 SALIM HS DAN ERLIES SEPTIANA NURBANI, PENERAPAN TEORI HUKUM PADA
PENELITIAN TESIS DAN DISERTASI (2014).
21 SOERJONO SOEKANTO DAN SRI MAMUDJI, PENELITIAN HUKUM NORMATIF (2009).
22 ABDULKADIR MUHAMMAD, HUKUM DAN PENELITIAN HUKUM (2004).
23 I Wayan Suandi, Penggunaan Wewenang Paksaan Pemerintah dalam
Penyelenggaraan Pemerintahan Di Propinsi Bali, 2003.
24 ED. SALLY FALK MOORE, =LAW AS PROCESS: AN ANTHROPOLOGICAL APPROACH
(1978).
25 BRIAN Z TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY (2004).
26 JOHN. RAWLS, A THEORY OF JUSTICE (1971).
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arguments by explaining the results of legal interpretation, legal
construction and legal reasoning27.
TRADITIONAL SOCIETY: CONDITIONS
STILL ALIVE
THE CONDITION IS STILL ALIVE, that the traditional society until
now still exists and its existence is found in the genealogical territorial
sector. The phrase as long as it still exists in the recognition of the
customary rights of customary law communities as regulated in
Article 18 B paragraph (2) of the 1945 Constitution of the Republic of
Indonesia can lead to the potential for multiple interpretations and
become fertile ground for conflicting norms in the practice of
constitutional life of the Republic of Indonesia, especially in the
context of the relationship between power, recognition, and respect.
This situation causes the recognition and respect that is intended for
indigenous peoples cannot be implemented28. In connection with the
substance of Article 18 B of the 1945 Constitution of the Republic of
Indonesia, there is also one thing that needs to be understood through
the phrase as long as it exists, namely the possibility of the emergence
of new customary law communities in the future being closed. The
language construction of conditional clauses in Article 18 B of the 1945
Constitution of the Republic of Indonesia also indicates the nature of
norms that are difficult to apply. This is contrary to the rules of the
Indonesian language which must be made clear (obvious), objective
27 BERNAND ARIEF. SIDHARTA, REFLEKSI TENTANG STRUKTUR ILMU HUKUM,
CETAKAN KEDUA (2008).
28 Lalu Subardi, Konstruksi Makna Yuridis Masyarakat Hukum Adat Dalam Pasal 18
B UUD NRI Tahun 1945 Untuk Identifikasi Adanya Masyarakat Hukum Adat, 1 J.
HUK. DAN PEMBANG. TAHUN KE 43 NO. 2 APRIL. 171 (2013).
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(objective), does not contain multiple interpretations (non-multi-
interpretation) and must be applicable and must not make certain
groups difficult or unlucky29.
Traditional society, in essence, is not oriented towards disability,
backwardness. However, the orientation of traditional society lies in
the belief and enthusiasm to maintain that belief as a tradition30. The
existence of conditionality on the juridical status and rights of
traditional communities, causes the existence of traditional
communities to depend on the political will of the government. This
is due to the presence of a clause 'determined by law' within the
boundaries of traditional society. This clause places the traditional
community in a difficult position because it is required by four
conditions of recognition. As a result, if there is a violation of the
rights of traditional communities, there is no legal basis that can be
used to develop and implement special advocacy efforts for this
group. Right to Development, the right to development is part of the
Right to Development, which according to the United Nations
Declaration on the Right to Development, 1986 and the 1989 ILO
Convention on Minority Groups and Traditional Peoples in
Independent Countries31. The constitutional rights of traditional
people should be prioritized over the rights of ordinary citizens.
Because traditional people are citizens who have traditional special
rights. Theoretically it is recognized that traditional communities as
citizens of the Republic of Indonesia need to get protection,
guarantees and legal certainty, but in reality, their fate and socio-
29 Jawahir Thontowi, Pengaturan Masyarakat Hukum Adat dan Implementasi
Perlindungan Hak-hak Tradisionalnya, 10 PANDECTA RES. LAW J. 25 (2015).
30 Lalu Sabardi, Konstruksi Makna Yuridis Masyarakat Hukum Adat dalam Pasal 18B
UUDN RI Tahun 1945 untuk Identifikasi Adanya Masyarakat Hukum Adat,
44 JURNAL HUKUM & PEMBANGUNAN. 170 (2014).
31 KOMISI NASIONAL HAK ASASI MANUSIA, MEWUJUDKAN HAK KONSTITUSIONAL
MASYARAKAT HUKUM ADAT (2006).
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economic status are marginalized. To strengthen the protection for
them, a special "affirmative action" is needed. That is why constitutional
rights are more focused on efforts to fight for the legality of basic
rights for traditional communities in the 1945 Constitution, even
though in its realization many are negated by the sectoral law32. With
the fact that traditional communities are recognized because they still
live in all areas that are part of the territory of Indonesia. As legal
subjects, the public also has the right to obtain welfare guarantees
from the State and also pay taxes as an obligation of legal subjects.
Land Management Rights (Hak Pengelolaan Lahan, HPL) are
rights outside the LoGA that grow and develop in accordance with
development demands. Rights that have existed since the colonial era
need to be formulated in a statutory regulation, so that between HPL
holders and third parties who use HPL are in the corridor of legal
certainty, justice and expediency. Development that takes place in
Indonesia still requires the existence of HPL, due to limited
government funds, and in the context of empowering Government
Agencies (central) and Regional Governments. HPL can be a test tool
for the state's right to control. Has the weak economic group got a
place in the existence of HPL in order to balance out the parties who
always "exploit the land" namely the investors.
Recognition of indigenous peoples in government programs is
often ignored, because it is considered to hinder government
programs. Whereas customary law is a source of material law that can
be used in and for national development. Hasn't the school of history
given the view that customary law is a reflection of the indigenous
cultural values of the indigenous population. Even in the philosophy
of law the flow of "socio-logical jurisprudence" says that a good and
32 Jawahir Thontowi, Perlindungan dan Pengakuan Masyarakat Adat dan
Tantangannya dalam Hukum Indonesia, 20 J. HUK. IUS QUIA IUSTUM 21-36 (24)
(2013).
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effective positive law is a positive law that is in accordance with living
law33.
The transition from HPL to Hak Guna Bangunan is the land parcel
that causes the most problems for both HPL holders and third parties.
Development sectors that take advantage of this opportunity include
Perumnas; Industry; Tourism, etc. According to the Regulation of the
Minister of Agrarian Affairs Number 9 of 1965, authorizing HPL
holders to receive income and/or annual mandatory fees determined
in accordance with the agreement, there are many cases that occur
between HPL holders and third parties, there are often disputes
related to this income. . For this reason, the presence of laws and
regulations is so important to determine the minimum and maximum
percentages for determining income. What are the standards that can
be used as a benchmark for determining income money (for example,
Sales Value of Tax Objects-NJOP). In addition, third parties are also
required to pay Customs for the Acquisition of Land and Building
Rights (BPHTB) as regulated in Law No. 21 of 1997. HPL makes a
positive contribution to state finances through taxes.
The function of law in the development process is as a means of
development. Law is a means that pave the way and channel the
wishes and needs of the community in the desired direction34. In the
future perspective, the world will become a big village, while national
boundaries will become very blurry. Meanwhile the global economy
follows its own logic35. For this reason, the role of the state in
protecting its citizens is an important element, in addition to
accommodating the changes that occur.
33 SUNARYATI HARTONO, BHINNEKA TUNGGAL IKA SEBAGAI ASAS HUKUM BAGI
PEMBANGUNAN HUKUM NASIONAL (2006).
34 MOCHTAR KUSUMAATMADJA, PEMBINAAN HUKUM DALAM RANGKA
PEMBANGUNAN NASIONAL (1986).
35 KHUDZAIFAH DIMYATI, TEORISASI HUKUM. STUDI PERKEM-BANGAN PEMIKIRAN
HUKUM DI INDONESIA 1945-1990 (2005).
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The practice of using HPL in development in Indonesia can be
categorized into 3 (three) major parts, namely the use of HPL for the
lower middle economic class, the use of HPL for the lower middle
economic class, and the use of public facilities. Land is an asset and
development capital as well as non-economic. Both are a unit, where
on it there are humans as residents and the content of natural
resources in it. Indonesia is an archipelagic country consisting of
17,508 and is even dubbed the Maritime Continent. Its entire
jurisdictional area is 7.8 million Km2, including a land area of
2,027,087 Km236.
Based on the above conditions, geographically to advance the
above islands, private sector participation is needed in an effort to
accelerate development. One of the principles in reorganizing the
bureaucracy is results-oriented government and prioritizes budgeting
to finance results and not inputs. The existence of a government with
an entrepreneurial spirit, which is more oriented to, not spending
(spending). Legal development is legal reform. In the land law, HPL
must be given a place as an administrative right in the context of
accelerating Indonesia's development, especially in border areas,
islands, and others. HPL has made many positive contributions to
Indonesia's development. Example of tourism. As a state of material
law (welfare state)37, the government together with business entities
and the community, drive the government through the principle of
entrepreneurship.
36 AGUM GUMELAR, KEBIJAKAN AGRARIA/PERTANAHAN DARI PERSPEKTIF
PERTANAHAN KEAMANAN DALAM KONTEKS NEGARA KESATUAN REPUBLIK
INDONESIA, DALAM BRAHMANA ADHIE DAN HASAN BASRI NATA MENGGALA
(PENYUNTING), REFORMASI PERTANAHAN (2002).
37 UZAIR FAUSAN DAN HERU PRASETYO JOHN RAWLS, A THEORY OF JUSTICE,
CAMBRIDGE: HAVARD UNIVERSITY PRESS, TERJEMAHAN, TEORI KEADILAN:
DASAR-DASAR FILSAFAT POLITIK UNTUK MEWUJUDKAN KESEJAHTERAAN SOSIAL
DALAM NEGARA (2010).
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DYNAMIC CONDITIONS: RECOGNITION
OF TRADITIONAL SOCIETIES &
CUSTOMARY LAW COMMUNITIES
PHRASES IN ACCORDANCE with the principles of the times and
the principles of the Unitary State of the Republic of Indonesia.
According to Van Apeldorn, law is not enough to be interpreted as a
rule that binds its citizens but must have aspects of justice and other
principles that are useful for protecting citizens fairly and
guaranteeing legal certainty for every citizen, without exception 38. In
the study of the recognition of indigenous peoples with a legal
pluralism approach, indigenous peoples are positioned according to
their views 39, A semi-autonomous social area is a social group that is
identified and engaged in regulatory activities (laws) in which
individual behavioral processes and processes of interaction within
and between semi-autonomous areas affect the effectiveness of the
law at a particular location and time. The existence of these two
requirements in the recognition of the customary rights of customary
law communities shows that Indonesia adheres to weak pluralism in
the categorization proposed by Griffith40. Weak pluralism, according
to Griffith, occurs when the existence of customary law communities
38 E. Juanda, Hukum Dan Kekuasaan, 5 J. ILM. GALUH JUSTISI 177–191 (2017).
39 JOHN GRIFFITHS, MEMAHAMI PLURALISME HUKUM, SEBUAH DESKRIPSI
KONSEPTUAL”, DALAM PLURALISME HUKUM: SEBUAH PENDEKATAN
INTERDISIPLIN, ED. PERKUMPULAN UNTUK PEMBAHARUAN HUKUM BERBASIS
MASYARAKAT DAN EKOLOGIS (2005).
40 SOETANDYO WIGNJOESOEBROTO ET.AL., UNTUK APA PLURALISME HUKUM?;
REGULASI, NEGOSIASI DAN PERLAWANAN DALAM KONFLIK AGRARIA DI
INDONESIA (2011).
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is dependent on the state41. The dynamic requirements are in
accordance with the development of society where the law has an
imperative power over taxpayers to fulfill their tax obligations to
traditional communities whose livelihoods depend on the tourism
industry. Tourism commodity is a leading asset that can develop by
utilizing local labor. The transition from natural resource assets of
tourist village objects to capital, the elaboration of this dynamic
requirement is the process of transferring knowledge and technology
that is contributed to the management of tourism areas. The
perspective of academic scientific studies tries to develop a theoretical
and conceptual framework that explains the logic, functions,
limitations, and consequences of this dynamic recognition
requirement for the existence of traditional societies. As a realization
of the mandate of the Constitution Article 18B paragraph (2) of the
Indonesian Constitution, the Constitution introduces us to the
concept of genealogical territory for the purpose of explaining how
law is an absolute requirement and the dynamic nature of law is
sometimes bumped into by the complexity of the legal needs of
society which require adjustments and can even lead to discrepancies.
In many ways, the dynamics of the recognition of traditional
societies that are genealogical in nature illustrates the strength of the
indigenous people found in each region in Indonesia according to this
concept to be fought for. However, for reasons of respect for legal
pluralism, the dynamic requirement for local community recognition
is based on Article 18B paragraph (2) of the Indonesian constitution
that the dynamics of law always respects pluralism to reach a more
general audience, the dynamic requirements in the substance of
41 I Ketut Kasta Arya Wijaya AA Gede Oka Parwata, Eksistensi Desa Pakraman
Dalam Pengelolaan Kepariwisataan Budaya Bali (Kajian Terhadap Peraturan Daerah
Provinsi Bali No 2 Tahun 2012 , tentang Kepariwisataan Budaya Bali), 12 KERTHA
WICAKSANA: 69-75 (72–74) (2018).
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Article 18B paragraph (2) of the Indonesian constitution. Article 18B
paragraph (2) does not provide the reader with a detailed technical
explanation of how the law has helped change what was once a
financially remote area into one that is rich in natural resources and is
produced as a source of State income from the tax sector related to the
management of the tourism industry. This explanation may continue
as long as it is in accordance with the legal reality of Indonesian
society. Genealogical territories are entities that have autonomy in
independent financial management according to potential. The
government should also not partially see the relationship between
customary law communities and their territory from an economic
point of view. The government as the executor of the right to control
the state must look at these linkages holistically in terms of economic,
social, cultural and spiritual aspects. The government must be able to
understand the intersubjective meaning, namely the meaning created
in community interaction and the emic meaning, namely the local
meaning. The state develops policies to revive the economy of
traditional communities through the provision of tax incentives. The
procedure for providing incentives has not yet been regulated,
causing legal certainty and justice for traditional communities to be
difficult to obtain. The denial of the economic rights of traditional
communities in the use of land rights is not in line with the basic
principles of tourism development based on Article 4 of Law No. 10
of 2009 concerning tourism.
So, the dynamic requirements become the foundation for taking
legal initiatives in providing tax incentives. The state through the tax
officer collects data on the number of taxpayers on the tax object. The
intervention of tax collectors is reduced by incorporating tax incentive
criteria into the legal substance so that it can serve as a formal legal
basis for economic tax relief.
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CONDITIONS ACCORDING TO THE
PRINCIPLE OF INTEGRATION
THE THIRD CONDITION to be fulfilled in order to be recognized is
if the traditional community unit does not interfere with the existence
of the Unitary State of the Republic of Indonesia as a political and
legal entity that does not threaten the sovereignty and integrity of the
Unitary State of the Republic of Indonesia and the substance of its
customary law norms is in accordance with and does not conflict with
the provisions of laws and regulations.
The question is what the limits of national interest in this law are.
In practice when acting in the name of national interest, it is always
the traditional society who has to give in. The concept of involving
indigenous peoples in determining policies is still very rarely applied.
Especially with this provision, if a corrupt government comes to
power, it is certain that the rights of traditional communities and their
traditional rights will be violated. It is necessary to specify in detail
what national interests must be protected.
If an area is burdened with customary rights, it makes it a
privilege for traditional communities to use it. This is something that
is not easily accepted by districts or cities, because these areas should
be used as areas to increase regional income. The tax policy does not
take into account the unique characteristics of traditional society, it is
suspected that it only attaches importance to certain groups and is full
of the spirit of materialism. Considerations for the government
regarding policies that need to be formulated as an appropriate
taxation scheme for traditional communities42.
42 Yuyung Rizka Aneswari, Membongkar Imperialisme dalam Kebijakan Pajak Usaha
Mikro Kecil dan Menengah (UMKM, 14 INFESTASI 1-10 (1–2) (2018).
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Large resources and capital mean for the development and
improvement of tourism, capital is one of the potentials that must be
utilized optimally through the implementation of tourism which in
general aims to increase national income in order to improve people's
welfare. Economic benefits and the entry of foreign exchange for the
region and the state, increase and income of the community and
government. Tourism also encourages the protection process of a
physical and socio-cultural circle of the local community, because it is
an asset that can be sold to tourists and if it wants to continue it must
be maintained. Therefore, to optimize the benefits and reduce the
various problems caused by tourism development, good planning
and good management are needed. National tourism development
refers to the ideal foundation (religious values and Pancasila), the
constitutional basis of the 1945 Constitution of the Republic of
Indonesia which is operationally carried out by the main actors of
tourism development. The tourism sector can be categorized as a
source of income in several sectors that can directly provide income
to state revenues sourced from taxes. The amount of income in a
country or in an area can affect the population. If the population
increases, the income that can be withdrawn will also increase in line
with the Tourism Law, that tourism is shown to increase national
income in order to improve the welfare and prosperity of the people.
CONDITIONS ARE REGULATED BY LAW
THE ENTRANCE FEE for tourist areas has been regulated in the law
consisting of villages and traditional villages. The largest income
contribution from tourism comes from the imposition of taxes. The
tourism industry has an important role in development efforts to
increase people's economic income in the long term. The Agrarian
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Law and the Tourism Law are to be aligned in the context of central
and regional relations in managing regional potential in the tourism
sector with the authority possessed by traditional communities over
the management of the land.
The important role of law in tourism development, such as
providing job protection for local communities; increase in income
based on laws, court decisions, and customary law materials as
sources of state income from tourism industry taxes. the principle of
administering local government as regulated by law as a requirement
for traditional communities to receive recognition. Increasing state
income from tax proceeds shows a harmonious relationship between
the community, local government and lawmakers. The legal umbrella
for the constitution is Article 18B Paragraph 2 with four requirements
for recognition of traditional communities in development and
accountability to citizens. The administration of government and
development needs the initiative of the traditional community, the
Act bridges the management of the interests of the local community
based on their origins and customs. The strong influence of Adat on
the local government system is regulated by law.
CONLUSION
WITH THE UNIVERSAL recognition of traditional societies, it is
natural to ask what impact the Capital Code has on science at the
intersection of the constitution and state income. Only time will tell.
However, one thing that is certain is that Article 18B paragraph 2 of
the Constitution of the Republic of Indonesia has laid the basis for
further research exploring various forms of regulatory recognition of
Laws, Government Regulations, Ministerial Regulations and
Regional Regulations which together form the national economic
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system by adopting a balance of superstructure loads. and bottom up.
Becoming more critical in examining the relationship between law,
finance, and inequality is a further task for law and economics
scholars in the field of research and economic policy making.
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